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3£ 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDERS 

IN ADDITION 

Final Decision Letter 

PROPOSED RULES 
Commerce 

Environment, Health, and Natural Resources 
Human Resources 
Public Education 
Social Work, Certification Board for 



LIST OF RULES CODHTED 
RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

RECEIVED 
CONTESTED CASE DECISIONS 

JUN 3 1993 

ISSUE DATE: June 1, 1993 

IM LIBRARY 
Volume 8 • Issue 5 • Pages 401 - 455 



INFORMATION ABOUT THF. NORTH CAROLINA REGISTER AND ADMINISTRATIVE COPF 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (S0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION 


CONTACT 




Office 


of 


Administrative Hearings, 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer 27447, Raleigh, North Carolina 


27611 


-7447, 


(919) 


733-2678. 













< 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 9-12 401 

II. IN ADDITION 

Voting Rights Act 407 

III. PROPOSED RULES 
Commerce 

Alcoholic Beverage Control 
Commission 408 

Banking Commission 408 

Environment, Health, and 

Natural Resources 

Health Services 425 

Human Resources 

Medical Assistance 414 

Mental Health, Developmental 
Disabilities and Substance Abuse 

Services 413 

Licensing Board 

Social Work 428 

Public Education 

Elementary and Secondary 427 

IV. LIST OF RULES CODIFIED . . 432 

V. RRC OBJECTIONS 436 

VI. RULES INVALIDATED BY 

JUDICIAL DECISION 442 

VII. CONTESTED CASE DECISIONS 

Index to ALI Decisions 443 

Text of Selected Decisions 

92 DCS 1181 447 

92 DHR 1145 449 

VIII. CUMULATIVE INDEX 454 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1993 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


*Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


******* 


******* 


******* 


******* 


******* 


******* 


sf: -J*, ■if, -^. ■if. vjc -Jf. 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/93 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/17/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



* The "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 9 

COMMISSION FOR A 

COMPETITIVE NORTH CAROLINA 

WHEREAS, the increasing globalization of 
economic relationships, the movement of goods, 
information, technology and capital across national 
boundaries, and the restructuring of national and 
state economies have changed the conditions for 
long-term economic success; and 

WHEREAS, increasing the ability of North 
Carolina's people, communities, and enterprises to 
compete successfully in a global market place is 
vital to the long-term economic prosperity and 
quality of life for the citizens of this state; and 

WHEREAS, building the long-term competitive 
capacity for the people, communities, and enter- 
prises of North Carolina requires concerted and 
cooperative effort by the public sector; the private 
sector, and the nonprofit sector, and new forms of 
partnerships that involve the contributions that 
each sector is best positioned to make; and 

WHEREAS, effective public sector action and 
successful partnerships are dependent upon a 
commonly shared view of long-term economic 
success, a clear understanding of the necessary 
roles each partner must play in achieving that 
success, and clear and specific measures of desired 
outcomes that focus the efforts of all partners; and 

WHEREAS, the public sector must rethink its 
role as an effective partner for long-term develop- 
ment by becoming more entrepreneurial in action, 
by tying resources directly to desired long-term 
outcomes, by establishing clear benchmarks for 
measuring performance, by holding itself account- 
able to the people for measurable performance, 
and by instituting performance based budgeting to 
hold agencies and programs similarly accountable; 

NOW THEREFORE, by the authority vested in 
me as Governor by the constitutions and laws of 
North Carolina and the United States, it is OR- 
DERED: 

Section 1. ESTABLISHMENT 

The Commission for a Competitive North Caroli- 
na is hereby established to develop a long-term, 
comprehensive vision for competitive people, 
communities, and enterprises; to determine the 
appropriate role of state government in achieving 



that vision; to recommend changes in policies and 
programs compatible with that role; to define 
measurable outcomes to achieve the vision of 
competitive people, communities, and enterprises; 
and to establish performance measures for periodi- 
cally measuring progress in achieving those out- 
comes. 

Section 2. MEMBERSHIP 

The Commission shall consist of up to 40 mem- 
bers appointed by the Governor. The membership 
may include representatives of the private sector, 
the nonprofit sector, local government, and the NC 
General Assembly. 



Section 3. CHAIR 

The Governor shall serve as Chair of the Com- 
mission. The Governor will appoint one Vice 
Chair representing the private sector and one Vice 
Chair representing the nonprofit sector, who shall 
serve for two years. 

Section 4. TASK FORCES 

The Governor shall also appoint chairs for the 
task forces of the Commission. The Governor, 
Vice Chairs, and the Task Force Chairs shall form 
the Steering Committee for the Commission. The 
task forces shall consist of members of the com- 
mission, plus such other resource persons as the 
Steering Committee shall designate. Task forces 
shall be organized on the following topics, plus 
such others as the Steering Committee shall desig- 
nate as necessary to accomplish the mission of the 
Commission: the business environment, the 
people and the workforce, the natural environ- 
ment, the physical and technological infrastructure, 
the international environment, and entrepreneurial 
governance. 

Section 5. MEETINGS 

The Commission shall meet at the call of the 
Governor. 

Section 6. PURPOSE 

The purpose of the Commission for a Competi- 
tive North Carolina is to prepare a long-term, 
comprehensive vision for competitive people, 
communities and enterprises in North Carolina; 
define measurable outcomes for achieving that 
vision; establish performance standards for periodi- 
cally assessing progress toward that vision; recom- 
mend changes in methods of operation for state 
government programs and agencies to achieve that 



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June 1, 1993 



401 



EXECUTIVE ORDERS 



vision; and recommend a permanent organizational 
structure for monitoring performance measures and 
updating outcomes and recommendations. The 
Commission will prepare a final report to the 
people of North Carolina not later than fall, 1994 
that includes necessary actions to accomplish the 
recommendations in that report. 



Propose a long-term vision for a competi- 
tive North Carolina that reflects the 
results of the studies, reviews, analyses, 
focus groups, public testimony, and other 
forms of insight that the Commission 
receives in the process of performing its 
tasks and functions. 



The Commission shall, in the performance of its 
tasks and functions: 

■ Conduct a comprehensive review of all 
prior studies and reports by public or 
private entities in North Carolina relevant 
to the mission, tasks, and function of the 
commission. 

■ Conduct a comprehensive review of all 
prior studies and reports by public or 
private entities relevant to the mission, 
tasks, and function of the Commission by 
other states, including Oregon, Florida, 
Minnesota, Arizona, and Texas. 

■ Conduct an examination of major indus- 
trial sectors in North Carolina to deter- 
mine likely changes in response to long- 
term economic competitiveness and likely 
impacts on people, enterprises, and com- 
munities in North Carolina. 

■ Use focus groups and other appropriate 
methods to gather input from representa- 
tives of the public sector, the private 
sector, the nonprofit sector, and the 
citizens of this state on the most critical 
issues for long-term competitiveness, the 
relative priority of these issues, strategic 
goals, barriers to achieving those goals, 
and the aspirations of the people of this 
state for their children, their communi- 
ties, their natural environment, and their 
economic opportunities. 

■ Gather such other data and information as 
may be necessary and useful for accom- 
plishing the purpose of the Commission. 

■ Work cooperatively with other boards, 
commissions, and entities and take maxi- 
mum advantage of their resources and 
activities that can provide useful informa- 
tion and insight to the purpose of this 
Commission. 



■ Propose measurable outcomes that will 
determine success in accomplishing that 
long-term vision. 

■ Propose performance measures to deter- 
mine progress toward achieving those 
outcomes. 

■ Propose specific actions to enable the 
Governor and the legislature to take 
effective action to focus resources on 
strategic initiatives. 

■ Propose specific changes in the gover- 
nance of relevant programs and activities 
in state government to enable them to 
focus more directly on desired outcomes 
and be held accountable for those out- 
comes; to operate as part of an efficient, 
integrated system; to engage in new 
forms of partnerships; to have an impact 
of significant scale and magnitude to 
accomplish desired long-term outcomes; 
and to operate effectively and efficiently 
in a rapidly changing environment to 
maintain and improve the competitiveness 
of North Carolina's people, communities, 
and enterprises in a global market place. 

■ Propose a permanent organizational 
structure that would monitor performance 
measures, update the recommendations in 
view of that performance and a changing 
environment, and issue periodic reports 
to the Governor, the legislature, and the 
people of North Carolina on the progress 
of the state in achieving the specified 
objectives. 

■ Prepare a final report on its findings and 
recommendations. 

Section 7. COOPERATION OF STATE 
AGENCIES 

All state agencies shall cooperate with the Com- 
mission as it implements its tasks and functions. 
The Governor's Policy Office shall serve as coor- 



402 



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NORTH CAROLINA REGISTER 



June 1, 1993 



EXECUTIVE ORDERS 



dinator of agency staff and other staff assistance to 
the Commission. 

Section 8. ADMINISTRATION AND 
EXPENSES 

The Department of Administration shall provide 
necessary administrative and support services to 
fulfill the Commission's tasks and functions. 

The Commission is authorized to accept grants, 
gifts, bequests, and other offers of assistance 
necessary to carry out its tasks and functions. The 
operating budget for the Commission shall derive 
solely from such grants, gifts, bequests, and other 
offers of assistance. Also, each state agency 
cooperating in the work of the Commission may 
provide additional funds from its own budget to 
support the Commission. 

Members of the Commission and staff shall 
receive necessary travel and subsistence expenses 
in accordance with state law. 

Section 9. EFFECTIVE DATE 

This Executive Order is effective immediately. 

Done in the Capitol City of Raleigh, North 
Carolina this 5th day of May, 1993. 

EXECUTIVE ORDER NUMBER 10 

ESTABLISHING THE QUALITY 

LEADERSHIP AWARDS COUNCIL 

By the authority vested in me as Governor by the 
Constitution and laws of North Carolina, IT IS 
ORDERED: 

Section 1. Establishment. 

The Quality Leadership Awards Council ("Coun- 
cil") is hereby established. The Council shall have 
two subordinate committees: the Examination 
Board and the Recognition Committee. It may 
have other committees as well. 

Section 2. Membership. 

1 . The Council shall consist of not more than 
thirty members, including: 

A. the Secretary of Commerce, or his 
designee; 

B. the President of the University of North 
Carolina System, or his designee; 

C. the President of the System of Communi- 
ty Colleges, or his designee; 

D. the Commissioner of Labor, or his 



designee; 

E. a member recommended by the Lieuten- 
ant Governor; 

F. a member recommended by the Speaker 
of the House; 

G. the President of North Carolina Citizens 
for Business and Industry; 

H. the Chair of the North Carolina Quality 
Leadership (NCQL) Foundation, or his 
designee; 

1. two appointees by the Governor from the 
education or non-profit sectors; 

J. no more than twelve ranking officials of 

organizations receiving a Quality Leader- 
ship Award ("Award") from the State: 

K. four industrial representatives; 

L. the Chair of the Commission on 

Workforce Preparedness; and 

M. the Governor, or his designee. 

2. The members of the Board of Examiners 
subordinate committee shall be drawn from profes- 
sional and technical experts in total quality man- 
agement and quality assurance-related fields. 
Members shall be invited to serve by the Council 
and shall serve at its pleasure. 

3. The members of the Recognition Committee 
shall be drawn from business, industry, education, 
and government personnel concerned with award 
programs and public relations, especially repre- 
senting industry associations and regional councils 
concerned with quality and productivity improve- 
ment. Members shall be invited to serve by the 
Council and shall serve at its pleasure. 

Section 3. Chair, Terms, and Vacancies. 

Those members under subsection (J) above shall 
serve three-year terms, which shall start in the 
year after winning the Award. The members 
under subsections (E) and (F) above shall serve at 
the pleasure of the Governor. The Governor shall 
fill all vacancies. However, should a vacancy 
occur in a seat held by a member recommended by 
the Lieutenant Governor or the Speaker of the 
House, the Governor shall fill that vacancy only 
after recommendation by the appropriate official. 
The Council shall elect its Chair from among its 
members. 

Section 4. Purposes. 

The purposes of the Council shall be: 

A. to enhance education and training of 
management and workforce, both current 
and future; 

B. to improve competitiveness of North 
Carolina business and industry, especially 



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NORTH CAROLINA REGISTER 



June 1, 1993 



403 



EXECUTIVE ORDERS 



L). 



supplier relationships; 
to encourage exchange of information 
toward quality improvement, especially 
through regional councils and industry 
associations; and 

to promote application of the seven prin- 
ciples of total quality management in 
North Carolina organizations. 



Section 5. Duties. 

1 . The North Carolina Quality Leadership 
Awards Council shall have the following responsi- 
bilities: 

A. approve and announce Quality Leadership 
Award ("Award") and Honor Roll recipi- 
ents in the following categories: manu- 
facturing and service industries (large-, 
medium-, and small-sized); and educa- 
tion, government, health care, and non- 
profit institutions; 

B. approve guidelines consistent with the 
principles of total quality management 
with which to examine applicant organi- 
zations; 

C. approve appointments of Judges and 
Examiners; 

D. arrange appropriate annual awards and 
recognition for recipients; 

E. recommend changes in the awards pro- 
cess, in cooperation with the N.C.Q.L. 
Foundation; 

F. cooperate with related education, train- 
ing, technology transfer, and research 
initiatives proposed by the N.C.Q.L. 
Foundation; and 

G. arrange for a Master of Ceremonies in 
presenting the Awards. 

2. The Board of Examiners shall: 

A. conduct evaluation of applicant organiza- 
tions by assessing applications, making 
recommendations, and conducting site 
visits of participating organizations; 

B. recommend Award guidelines; 

C. nominate Award recipients; and 

D. recommend Examiners and Judges to the 
Council. 

3. The Recognition Committee shall: 

A. recommend the types of awards; and 

B. recommend the format and timing of 
ceremonies. 

Section 6. Administrative Su pport. 

Operations support for the Council and Examina- 
tion Board, including administrative and training 
activities, shall be provided by the NCQL Founda- 



tion staff. The Department of Commerce, the 
University of North Carolina System, and the 
System of Community Colleges may provide 
additional staff and administrative support on a 

voluntary basis. 

Section 7. Rescission. 



Executive Orders 119 and 166 of the Martin 
Administration are hereby rescinded. 

This Order shall be effective immediately. 

Done in Raleigh, North Carolina, this the 5th 
day of May, 1993. 

EXECUTIVE ORDER NUMBER 11 

GOVERNOR'S COUNCIL OF 

FISCAL ADVISORS 

WHEREAS, it is desirable that Governors have 
benefit of the combined counsel of those officials 
primarily responsible for the State's fiscal affairs. 
NOW THEREFORE, to accomplish that end and 
pursuant to authority vested in me as Governor by 
the Constitution and laws of the State of North 
Carolina, IT IS ORDERED: 

Section L. Establishment. 

There is established the Governor's Council of 
Fiscal Advisors whose membership shall consist 
of: 

(a) The State Treasurer 

(b) The State Auditor 

(c) The State Budget Officer 

(d) The Secretary of the Department of 
Revenue 

(e) The State Controller 

(f) The Governor's General Counsel 

(g) The Governor's Advisor for Policy 

Section 2. Purpose. 

The purpose of the Council shall be to consider 
and advise the Governor concerning the fiscal 
affairs of the State. 

Section 3. Meetings. 

(a) The Council shall meet with the Governor in 
regular sessions each quarter at such times as the 
Governor directs and in special session at the 
Governor's call. 

(b) In addition, the Council shall meet without 
the Governor in regular session at such times as 
the Council selects and in special session at the 
call of the State Budget Officer. 

(c) The Governor shall preside at all meetings of 



404 



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NORTH CAROLINA REGISTER 



June 1, 1993 



EXECUTIVE ORDERS 



the Council at which he is present. The State 
Budget Officer shall preside at all meetings of the 
Council at which the Governor is not present. 
Agendas for all meetings of the Council shall be 
prepared by the State Budget Officer and distribut- 
ed to attendees in advance of the meetings. 

(d) Council members shall attend Council 
meetings in person and not by surrogates. 

Section 4. Invitees. 

In addition to Council members, the following 
are invited to attend and participate in Council 
meetings as the Governor's invitees: 

(a) the Executive Assistant 

(b) The Deputy State Budget Officer 

(c) the Lieutenant Governor or his designee 

(d) the Director of Fiscal Research for the 
North Carolina General Assembly or his 
designee. 

Section 5. Attendance at other meetings. 

Council members who are not members of the 
Council of State may attend meetings of the Coun- 
cil of State as invitees of the Governor. Council 
members who are not members of the Advisory 
Budget Commission may attend meetings of the 
Advisory Budget Commission as invitees of the 
Governor. 



increasing effectiveness and efficiency; 

WHEREAS, business and industry leaders have 
built up valuable expertise in using this strategy; 

WHEREAS, the most effective and efficient ratio 
of local public school administrators to teachers 
and students is not known; 

NOW THEREFORE, by the power vested in me 
as Governor by the Constitution and laws of North 
Carolina, IT IS ORDERED: 

Section L Establishment 

There is hereby established a Public School 
Administrator Task Force ("Task Force"). 

Section 2. Membership and Terms 

The Task Force shall consist of eight business 
and industry leaders with experience in improving 
effectiveness and efficiency in their organizations. 
Two of the members shall be selected upon the 
recommendation of the Speaker of the House and 
two members shall be selected upon the recom- 
mendation of the Senate President Pro Tem. The 
remaining members shall be appointed by the 
Governor. The members shall serve for six 
months. 



Section 6. Administration. 

The Office of State Budget and Management 
shall provide staff and administrative support to 
the Council. 

Section 7. Expenses. 

Council members shall serve without compensa- 
tion or reimbursement for expenditures incurred by 
them in attending Council meetings. 

Section 8. Rescission of prior orders. 

Executive Order Number 122 by Governor James 
G. Martin is hereby rescinded. 

This executive order shall be effective immedi- 
ately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 5th day of May, 1993. 

EXECUTIVE ORDER NUMBER 12 

PUBLIC SCHOOL ADMINISTRATOR 

TASK FORCE 

WHEREAS, this Administration has a goal of 
doing more with less in our public schools by 



Section 3. Duties 

The Task Force shall have the following duties: 

(a) Analyze existing ratios of local public 
school administrators to teachers and 
students; 

(b) Determine the ratio necessary to effec- 
tively and efficiently administer quality 
education at the local level; 

(c) Develop guidelines for local public 
school administrators to follow in imple- 
menting more effective and efficient 
administration; and 

(d) Report its findings and recommendations 
to the Joint Legislative Education Over- 
sight Committee and to the State Board 
of Education. 

Section 4. Administration and Expenses 

The Task Force members shall be reimbursed for 
necessary travel and other expenses as allowed by 
North Carolina law. Administrative and staff 
support for the Task Force shall be provided by 
the Department of Administration. 

This order is effective June 1, 1993, and shall 
terminate December 1, 1993. 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



405 



EXECUTIVE ORDERS 



Done in the Capital City of Raleigh, North 
Carolina, this the 7th day of May, 1993. 



f 



I 



i 



406 8:5 NORTH CAROLINA REGISTER June 1, 1993 



IN ADDITION 



G.S. 1 20-30. 9H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change affecting 
voting " under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina Register . 



U.S. Department of Justice 

Civil Rights Division 

JPT:LLT:TGL:lrj Voting Section 

DJ 166-012-3 P.O. Box 66128 

93-0705 Washington, D.C. 20035-6128 

April 27, 1993 

George A. Weaver, Esq. 

Lee, Reece & Weaver 

P. O. Box 2047 

Wilson, North Carolina 27894-2047 

Dear Mr. Weaver: 

This refers to the procedures for conducting the June 8, 1993, special election in Wilson County, 
North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, 
as amended, 42 U.S.C. 1973c. We received your submission on March 1, 1993. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 
C.F.R. 51.41). 



Sincerely, 

James P. Turner 

Acting Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



8:5 NORTH CAROLINA REGISTER June 1, 1993 407 



PROPOSED RULES 



TITLE 4 - DEPARTMENT OF 
COMMERCE 

Notice is hereby given in accordance with G.S. 

150B-21.2 that the North Carolina Alcoholic 

Beverage Control Commission intends to amend 
rule cited as 4 NCAC 2R . 1903. 

1 he proposed effective date of this action is 
September 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on July 9, 1993 at the Commission Hearing 
Room, 3322 Garner Road, Raleigh, NC 27610. 

Jxeason for Proposed Action: To allow local ABC 
boards the option to discontinue a time-consuming 
procedure of placing a stamp on each individual 
liquor container. 

(comment Procedures: Written comments should 
be directed to the Administrator of the ABC Com- 
mission, P. O. Box 26687, Raleigh, NC 27611. 
Comments will be received until conclusion of 
hearing on July 9, 1993. 

CHAPTER 2 - ALCOHOLIC BEVERAGE 
CONTROL COMMISSION 

SUBCHAPTER 2R - ORGANIZATIONAL 
RULES: POLICIES AND PROCEDURES 

SECTION .1900 - SALES OF LIQUOR 
TO MIXED BEVERAGES PERMITTEES 

.1903 LOCAL BOARD PRODUCT 
IDENTIFICATION 

Prior to the sale of any container of spirituous 
liquor to the public at retail, the local board s hall 
may affix to the container or the individual 
container's packaging a stamp that indicates the 
following: 

( 1 ) local board system of sale; and 

(2) local board store number. 

Statutory Authority G.S. 18B-807. 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Banking Com- 
mission intends to adopt rules cited as 4 NCAC 3 J 
.0101, .0201 - .0205, .0301 - .0306, .0401 - 
.0402. 

1 he proposed effective date of this action is 
September 1, 1993. 

1 he public hearing will be conducted at 8:30 
a.m. on June 24, 1993 at the Dobbs Building, 
Suite 6210, 430 North Salisbury Street, Raleigh, 
North Carolina. 

MXeason for Proposed Action: To interpret and 
effectuate the Refund Anticipation Loan Act codi- 
fied at Chapter 53, Article 20 of the North Caroli- 
na General Statutes (N. C. Gen. Stat, section 
53-245, et seq.) and to provide for the protection 
of the borrowing public. . 

Comment Procedures: Comments may be made 
orally or in writing and must be submitted no later 
than Thursday, July 1 , 1993, 5:30 p.m. Comments 
should be directed to: T. Mercedes Oglukian, 
Special Counsel, North Carolina Banking Commis- 
sion, Post Office Box 29512, 430 North Salisbury 
Street, Raleigh, North Carolina 27626-0512 (Tel: 
(919) 733-3016; Fax: (919) 733-6918). 

CHAPTER 3 - BANKING COMMISSION 

SUBCHAPTER 3J - REFUND 
ANTICIPATION LOAN 

SECTION .0100 - ADMINISTRATIVE 

.0101 DEFINITIONS; FILINGS 

(a) As used in these Rules, unless the context 
clearly requires otherwise: 

(1 ) "Applicant" shall have the same mean- 
ing as set forth in G.S. 53-246(1). 
"Commission" shall have the same 



i2> 
£3} 

<4j 



meaning as set forth in G.S. 53-246(2). 
"Commissioner" shall have the same 
meaning as set forth in G.S. 53-246(3). 
"Controlling person" shall mean any 
person as defined herein who owns or 
holds with the power to vote 10% or 
more of the equity securities of the 
registrant, or who has the power to 
direct the management and policy of the 



408 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



PROPOSED RULES 





registrant. 


returns directlv to the Internal Revenue 


£5} 


"Creditor" shall have the same meaning 


Service. This term shall include per- 




as set forth in G.S. 53-246(4). 


sons who receive information to be 


16) 


"Creditor fee" shall mean the fee im- 


reformatted and transmitted to the 




posed bv the creditor which funds the 


Internal Revenue Service, i.e., third- 




refund anticipation loan in consideration 


partv transmitters. 


£21 

18] 


for funding the refund anticipation loan. 
"Debtor" shall have the same meaning 
as set forth in G.S. 53-246(5). 
"Electronic filing fee" shall mean the 


(b) An application for registration or anv report, 
notice, form or other document which is required 
bv law or rule to be filed with the Commissioner 
shall be addressed as follows: 




fee imposed bv the facilitator in consid- 
eration for the electronic filing of a tax 


Commissioner of Banks 




return. 


Post Office Box 29512 


£9} 


"Executive officer" shall have the same 


Raleigh, North Carolina 27626-0512 




meaning as such term is defined in 
Regulation "0" promulgated bv the 
Board of Governors of the Federal 


Statutory Authority G.S. 53-245; 53-246; 53-248; 
53-253; 150B-21.2. 




Reserve System, and codified in the 
Code of Federal Regulations at Title 


SECTION .0200 - APPLICATION AND 


(10) 


12, Chapter II, Part 215. 
"Facilitator" shall have the same mean- 
ing as set forth in G.S. 53-246(6). 


RENEWAL 
.0201 APPLICATION FOR REGISTRATION 


fll) 


"Facilitator loan fee" shall mean the fee 


AS A FACILITATOR 


(12) 


imposed by the facilitator in consider- 
ation for assisting the debtor in obtain- 
ing the refund anticipation loan. 
"Income tax return preparation fee" 
shall mean the fee imposed bv a person 
in consideration for preparation of the 
debtor's tax returns. 


(a) Anv person who would like to engage in 
business as a facilitator pursuant to the Refund 
Anticipation Loan Act shall first be registered with 
the Commissioner, unless such person is exempt 
from registration pursuant to G.S. 53-247(c) or 
G.S. 53-254. An application for registration shall 
be obtained from the Commissioner and shall be 


(13) 


"Loan-related fee" shall mean anv fee 
other than a creditor fee, facilitator loan 


filed pursuant to Rule .0101(b) of this Subchapter, 
(b) The application for registration as a facilita- 




fee or electronic filing fee paid bv the 
debtor for transmittal to third persons 
who provide services in connection with 


tor shall include the following: 

(1) A description of the applicant's organi- 
zational structure, including the name. 




the refund anticipation loan. 


business and residence address and 


(14) 


"Person" shall have the same meaning 
as set forth in G.S. 53-246(7). 


business telephone number of the appli- 
cant, its partners, executive officers. 


(15) 
(16) 


"Refund anticipation loan" shall have 

the same meaning as set forth in G.S. 

53-246(8). 

"Refund Anticipation Loan Act" shall 

mean the Refund Anticipation Loan Act 

codified at Chapter 53, Article 20 of 

the North Carolina General Statutes 


directors and controlling persons; 
(2) Copies of the following documents, 
where applicable: 

(A) The applicant's Articles of Incorpora- 
tion, or general or limited partnership 
agreement; 

(B) A Certificate of Existence or Certifi- 


£iD 


(G.S. 53-245, et seq.). 
"Refund anticipation loan fee" shall 
have the same meaning as set forth in 
G.S. 53-246(9) and shall include a 


cate of Good Standing not more than 
90 davs old from the applicant's state 
of incorporation; 
(C) A Certificate of Authority to do busi- 




creditor fee, facilitator loan fee, and 


ness in this State; 




loan-related fee as defined herein. 


(D) A copv of the applicant's Certificate 


(18) 


"Registrant" shall have the same mean- 


of Assumed Name; 


(19) 


ing as set forth in G.S. 53-246(10). 
"Transmitter" shall mean anv person as 
defined herein who transmits electronic 


(3) A description of the applicant's opera- 
tions, including the names and address- 
es of the banks which will fund refund 


8:5 


NORTH CAROLINA REGISTER 


June 1, 1993 409 



PROPOSED RULES 



14) 

(5) 
16) 

ID 



m 



19) 



(10) 



IT 



(12) 



(13) 



anticipation loans to its customers, and 
the names and addresses of transmitters 
and any other intermediary parties 
involved in the process of facilitating 
refund anticipation loans; 
A description of the business(es) in 
which the applicant is primarily en- 
gaged; 

The applicant's Electronic Filer Identi- 
fication Number (EFIN) as provided by 
the Internal Revenue Service; 
Proof that the applicant has been ac- 
cepted by the Internal Revenue Service 
to participate in its electronic filing 
program for the present tax year; 
Disclosure of any civil judgments en- 
tered against the applicant, its partners, 
executive officers, directors or control- 
ling persons during the past 10 years 
which have remained partially or whol- 
]y_ unpaid; 

Disclosure of any civil proceedings 
pending against or civil judgments 
entered against the applicant, its part- 
ners, executive officers, directors or 
controlling persons which involve fraud 
or dishonesty; 

Disclosure of any felony convictions 
entered against the applicant, its part- 
ners, executive officers, directors or 
controlling persons; 
Disclosure of any misdemeanor convic- 
tions entered against the applicant, its 
partners, executive officers, directors or 
controlling persons which involve theft, 
fraud, or dishonesty; 
Disclosure of any enforcement proceed- 
ing brought against the applicant, its 
partners, executive officers, directors or 
controlling persons by any agency or 
department of this State, the Federal 
government or any other state which 



involves the revocation or suspension of 
any business license; 
Disclosure of whether the applicant, 
any partner, executive officer, director, 
or controlling person has been denied 
acceptance in or suspended from the 
Electronic Filing Program of the Inter- 
nal Revenue Service; 
Disclosure of whether the applicant is, 
or has ever been, the subject of the 
following proceedings: bankruptcy, 
assignment for the benefit of creditors, 
receivership, conservatorship, or simi- 



(14) 
(15) 



lar proceeding; 

Three business references, including 

one bank reference; 



The address of each office in this State 
at which the applicant intends to facili- 
tate refund anticipation loans. 

(c) The application for registration as a facilita- 
tor shall be accompanied by a fee made payable to 
the Commissioner in the amount set forth in G.S. 
53-248(a). 

(d) The application shall be ui writing and 
verified. 

(e) Incomplete application files shall be closed 
and deemed denied without prejudice when the 
applicant has not submitted information requested 
by the Commissioner within 30 days of request. 

Statutory- Authority G. S. 53-245(b); 53-247(a); 53- 
248(a); 53-253; 150B-21.2. 

.0202 ISSUANCE OF A CERTIFICATE OF 
REGISTRATION 

Upon receipt of a completed application and 
payment of the fee required by G.S. 53-248(a), the 
Commissioner shall review the application and 
conduct such investigation of the applicant as 
necessary to make the findings required by G.S. 
53-248(a). If the Commissioner finds that the 
applicant has met the conditions of G.S. 53-248(a), 
the Commissioner shall issue the applicant a 
renewable Certificate of Registration. 

Statutory Authority G.S. 53-248(a), (b); 53-253; 
150B-21.2. 

.0203 EXPIRATION AND RENEWAL 

(a) A Certificate of Registration shall be valid 
from the date of issuance and, unless timely 
renewed, shall expire on December 31 of each 
year. 

(b) Thirty days prior to the date of expiration, 
each registrant that would like to renew its Certifi- 
cate of Registration shall submit a renewal applica- 
tion to the Commissioner. The renewal applica- 
tion shall be obtained from the Commissioner and 
shall be filed pursuant to Rule .0101(b) of this 
Subchapter. 

(c) Unless the registrant timely renews its 
Certificate of Registration, the registrant shall not, 
after the date of expiration, engage in business as 
a facilitator in this State. 

(d) If the Certificate of Registration expires, the 
registrant shall apply for a Certificate of Registra- 
tion pursuant to Rule .0201 of this Section if it 
wishes to engage in business as a facilitator in this 



410 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



PROPOSED RULES 



State. 

Statutory Authority G.S. 53-248(b); 53-253; 150B- 
21.2. 

.0204 APPLICATION FOR RENEWAL OF 
CERTIFICATE OF REGISTRATION 

(a) The application for renewal of the Certificate 
of Registration shall include the following: 

(1) Where applicable, any amendments to 
the application for registration filed 
pursuant to Rule .0201 of this Subchap- 
ter; 

(2) A written verification of the accuracy 
of the application for Certificate of 
Registration filed pursuant to Rule 
,0201 of this Subchapter and any 
amendments filed pursuant to Rules 
.0204(a)(1) and .0305 of this Subchap- 
ter. 

(b) The application for renewal of the Certificate 
of Registration shall be accompanied by a fee 
made payable to the Commissioner in the amount 
set forth in G.S. 53-248(b) for each existing office 
and a fee made payable to the Commissioner in the 
amount set forth in G.S. 53-248(a) for each new 
office where the registrant intends to facilitate 
refund anticipation loans during the succeeding 
year. 

(c) Incomplete applications for renewal of the 
Certificate of Registration shall be closed and the 
application for renewal deemed denied without 
prejudice when the registrant has not submitted 
information requested by the Commissioner within 
30 days of such request. 

Statutory Authority G.S. 53-248(a), (b); 53-253; 
150B-21.2. 



partnership: 

(A) A change in one of the registrant's 
general partners; 

(B) The conversion of the general partner- 
ship into a limited partnership, corpo- 
ration or proprietorship; 

(C) The conversion of the limited partner- 
shi p into a general partnership, corpo- 
ration or proprietorship; 

(3) If the registrant is a proprietor: 

(A) The conversion of the proprietorship 
into a general or limited partnership 
or corporation; 

(B) The sale of all of the assets of the 
registrant's business to another per- 
son. 

(c) Upon a change in organization as set forth in 
Paragraph (b) of this Rule, the Certificate of 
Registration shall become void and the registrant 
shall surrender its Certificate of Registration to the 
Commissioner within 30 days of such change. If 
the entity which results from the change in the 
registrant's organization would like to engage in 
business as a facilitator in this State, it shall apply 
for a Certificate of Registration pursuant to Rule 
.0201 of this Section. 

Statutory Authority G.S. 53-253; 150B-21.2. 

SECTION .0300 - OPERATIONS, 

REPORTING REQUIREMENTS, 

NOTIFICATIONS 

.0301 CHECK CASHING SERVICES 

A registrant which offers check cashing services 
shall not require a debtor to use such services for 
cashing a check which represents the proceeds of 
a refund anticipation loan. 



.0205 NONTRANSFERABILITY OF 

CERTIFICATE OF REGISTRATION 

(a) A Certificate of Registration shall be neither 
transferable nor assignable. 

(b) The circumstances under which the Commis- 
sioner shall deem a change in the registrant's 
organizational structure to constitute a transfer or 
assignment of the Certificate of Registration shall 
include, but not be limited to, the following: 

(1) If the registrant is a corporation: 

(A) A change in ownership of 50% or 
more of the registrant's stock; 

(B) The conversion of the corporation into 
a general or limited partnership or 
proprietorship; 

(2) If the registrant is a general or limited 



Statutory Authority G.S. 53-250(5); 53-253; 150B- 
21.2. 

.0302 RECORD AND BOOKKEEPING 
REQUIREMENTS 

(a) A registrant shall maintain the following 
records with respect to each application for a 
refund anticipation loan in this State. These 
records shall be kept in an office or offices of the 



registrant in this State. This Rule shall not be 
interpreted to require a registrant to maintain one 
central office at which all records required herein 
are located: 

(1) Name of applicant for a refund anticipa- 
tion loan; 

(2) Social security number of applicant for 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



411 



PROPOSED RULES 



a refund anticipation loan; 

(3) Date of application; 

(4) Disposition of application, e.g., wheth- 
er loan was funded, denied, etc.; 

(5) The gross amount of the refund antici- 
pation loan; 

(6) The amount of the creditor fee; 

(7) The amount of the facilitator loan fee, 
if any; 

(8) The amount of the loan-related fees, if 
any; 

(9) The amount of the electronic filing fee; 
10) The amount of the income tax return 

preparation fees , if any; 
The amount of refund anticipation loan 
proceeds disbursed by the registrant to 
the debtor; 

(12) The date on which refund anticipation 
loan proceeds were disbursed by the 
registrant to the debtor; 

( 13) The identity of the registrant's execu- 
tive officer, partner or employee origi- 
nating the application for the refund 
anticipation loan; 

(14) The number, identity of drawer and 
amount of the check delivered to the 
debtor in payment of the proceeds of 
the refund anticipation loan; 

( 15) A copy of Internal Revenue Service 
Form No. 8453 or any successor Form. 

(b) An original (where the drawer is the regis- 
trant) or a copy of all checks delivered by the 
registrant to each debtor in payment of the pro- 
ceeds of the refund anticipation loan shall be 
available upon request by the Commissioner. 

(c) All records required by Paragraph (a) of this 
Rule may be maintained in any reasonable manner 



that the registrant selects. Where applicable, the 
information required by Paragraph (a) of this Rule 
may be maintained by the retention of copies of 
forms used to comply with state or federal statutes, 
rules and regulations. 

(d) All records required to be kept pursuant to 
Paragraph (a) of this Rule may be maintained in 
the form of magnetic tape, magnetic disk or other 
form of computer, electronic or microfilm media. 
However, records kept in this manner shall be 



convertible into clearly legible, tangible documents 
within 24 hours of request. This time period shall 
be extended for an additional reasonable time by 
the Commissioner if he finds that good cause for 
extension exists. 

(e) All records required to be kept pursuant to 
Paragraph (a) of this Rule shall be kept for a 
period of at least three years. 



Statutory Authority G.S. 53-249; 53-250; 53-253; 
150B-21.2. 

.0303 FILING AND POSTING OF FEE 
SCHEDULE 

(a) The fee schedule required by G.S. 53-249(a) 
shall be obtained from the Commissioner and shall 
be filed pursuant to Rule .0101 (b) of this Subchap- 
ter. 

(b) The fee schedule referenced in Paragraph (a) 
of this Rule shall include the following fees: 

(1) The creditor fee; 

(2) The facilitator loan fee; 

(3) Any loan-related fee; 

(4) The electronic filing fee. 

(c) Pursuant to G.S. 53-249(c), the registrant 
shall display the following fees: 

(1) The creditor fee; 

(2) The facilitator loan fee; 

(3) All loan-related fees; 

(4) The electronic filing fee. 

Statutory Authority G.S. 53-249(a), (c); 53-253; 
150B-21.2. 

.0304 DISCLOSURES 

(a) For the purposes of G.S. 53-249(d)(l), (2), 
the registrant shall disclose to the debtor the 
following fees: 

(1) The creditor fee; 



12} 

(3} 
14) 
(5) 



The facilitator loan fee; 



All loan-related fees; 

The electronic filing fee; 

The total dollar amount of the fees 

disclosed pursuant to Subparagraphs 

(a)(l)-(3) of this Rule. 
£b] For the purposes of G.S. 53-249(d)(5), the 
term "a ppropriate taxing authority" shall mean the 
Internal Revenue Service. 

(c) All disclosures made pursuant to G.S. 53- 
249(d) shall be made on a form or forms detached 
from the application. The registrant shall provide 
an applicant for a refund anticipation loan with a 
copy of ajj such disclosure forms. In the case of 
an application for a refund anticipation loan by a 
married couple who are filing a joint tax return, 
the registrant may satisfy this provision by provid- 
ing one copy of all such disclosure forms to the 
couple. 

Statutory Authority G.S. 53-249(d); 53-253; 150B- 
21.2. 

.0305 AMENDMENTS TO APPLICATION 

A registrant shall maintain a current application 



412 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



PROPOSED RULES 



with the Commissioner. If there is a change in the 
information contained in the application, the 
registrant shall notify the Commissioner within 30 
days of the effective date of such change. Notifi- 
cation to the Commissioner shall be accomplished 
either by letter or by revision of the a pplicable 
pages of the application filed pursuant to Rule 
.0201 of this Subchapter. If the registrant elects to 
comply with this Rule by revising its application, 
it shall obtain the applicable pages of the a pplica- 
tion from the Commissioner. 

Statutory Authority G.S. 53-253; 150B-21.2. 

.0306 CESSATION OF OPERATIONS 

(a) A registrant shall notify the Commissioner in 
writing of its decision to cease operations as a 
facilitator in this State. 

(b) A registrant shall surrender its Certificate of 
Registration to the Commissioner no later than 30 
days after it has ceased operations in this State. 

Statutory Authority G.S. 53-253; 150B-21.2. 

SECTION .0400 - ENFORCEMENT 

.0401 HEARINGS 

Any hearing conducted pursuant to G.S. 53-251 
shall proceed in accordance with 4 NCAC 3B 
.0200, et seq., and G.S. 150B. 

Statutory Authority G.S. 53-251; 53-253; 150B- 
21.2. 

.0402 EXAMINATIONS, AUDITS 

The Commissioner may conduct or cause to be 
conducted an examination or audit of the books 
and records of any registrant at any time when 
considered proper. 

Statutory Authority G.S. 53-253; 53-254; 150B- 
21.2. 



1 he proposed effective date of this action is 
October 1, 1993. 

lXeason for Proposed Action: To clarify capacity 
level for facilities licensed as Residential Treatment 
Centers, which provide services to children or 
adolescents. 

Ksomment Procedures: Written comments must be 
submitted to Charlotte Tucker, Division of Mental 
Health, Developmental Disabilities and Substance 
Abuse Services, 325 N. Salisbury Street, Raleigh, 
N. C. 27603 prior to July 2, 1993. Fiscal informa- 
tion on this Rule is available, upon request, from 
the Division. 

tLditor's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

tLditor's Note: This Rule was filed as a tempo- 
rary rule effective May 10, 1993 for a period of 
180 days or Until the Permanent Rule Becomes 
Effective, Whichever is Sooner. 

CHAPTER 14 - MENTAL HEALTH: 
GENERAL 

SUBCHAPTER 14L - LICENSURE RULES 
FOR MENTAL HEALTH FACILITIES 

SECTION .0600 - RESIDENTIAL 

TREATMENT FOR CHILDREN AND 

ADOLESCENTS WHO ARE MENTALLY 

ILL 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the Commission for Mental Health, 
Developmental Disabilities and Substance Abuse 
Services intends to amend rule cited as 10 NCAC 
14L .0602, with changes from the proposed text 
noticed in the Register . Volume 8, Issue 1 , pages 
7-21, and Volume 7, Issue 23, pages 2550 - 
2551. 



.0602 CAPACITY 

(a) Each facility shall serve no more than; 

(1) nine children; or 

(2) a«d nine adolescents^ at any on e tim e . 

(b) Any facility currently licensed as a Residen- 
tial Treatment Center under this Section on the 
effective date of this Rule, and providing services 
to more than nine children or nine adolescents, 
may continue to provide services at no more than 
the facility's license capacity as of the effective 
date of this Rule. 

(c) At no time shall a Residential Treatment 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



413 



PROPOSED RULES 



Center serve more than 24 children or 24 adoles- 
cents. 

Statutory Authority G.S. 122C-26; 143B-147. 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rules cited as 10 
NCA C 50B .0311, .0313, . 0403 and . 0406. 



1 he proposed effective date of this action 
September 1, 1993. 



is 



1 he public hearing will be conducted at 1:30 
p.m. on July 2, 1993 at the North Carolina Divi- 
sion of Medical Assistance, 1985 Umstead Drive, 
Room 132, Raleigh, NC 27603. 

MXeason for Proposed Action: 
10 NCAC 50B .0311 & .0313 - Amendments allow 
for an exclusion from income and resources when 
there is an approved plan for aged, blind, and 
disabled individuals to achieve self support 
(PASS). 

10 NCAC 50B .0403 - Rule necessary to allow 
exemption of up to $12,000 worth of property 
contiguous to the homesite if owned by the appli- 
cant, regardless of whether the applicant owns the 
homesite property. 

10 NCAC 50B .0406 - Rule supports the automa- 
tion of the deductible balance collection project 
and establishes an order for Medicaid covered 
services incurred on the same day. 

Comment Procedures: Written comments con- 
cerning these amendments must be submitted by 
July 2, 1993, to: Division of Medical Assistance, 
1985 Umstead Drive, Raleigh, NC 27603 ATTN: 
Clarence Ervin, APA Coordinator. Oral comments 
may be presented at the hearing. In addition, a 
fiscal impact statement is available upon written 
request from the same address. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER 50B - ELIGIBILITY 
DETERMINATION 

SECTION .0300 - CONDITIONS 



FOR ELIGIBILITY 

.0311 RESERVE 

North Carolina has elected the option under 
Section 1902(f) of the Social Security Act to limit 
Medicaid eligibility for the aged, blind or the 
disabled to individuals who meet eligibility re- 
quirements more restrictive than those under 
Supplemental Security Income. Applicants for and 
recipients of Medicaid shall use their own resourc- 
es to meet their needs for living costs and medical 
care to the extent that such resources can be made 
available. Certain resources shall be protected to 
meet specific needs such as burial and transporta- 
tion and a limited amount of resources shall be 
protected for emergencies. 
( 1 ) The value of resources currently available 
to any budget unit member shall be con- 
sidered in determining financial eligibili- 
ty. A resource shall be considered avail- 
able when it is actually available and 
when the budget unit member has a legal 
interest in the resource and he, or some- 
one acting in his behalf, can take any 
necessary action to make it available. 

(a) Resources shall be excluded in deter- 
mining financial eligibility when the 
budget unit member having a legal 
interest in the resources is incompetent 
unless: 

(i) A guardian of the estate, a general 
guardian or an interim guardian has 
been lawfully appointed and is able to 
act on behalf of his ward in North 
Carolina and in any state in which 
such resources are located; or 

(ii) A durable power of attorney, valid in 
North Carolina and in any state in 
which such resource is located, has 
been granted to a person who is au- 
thorized and able to exercise such 
power. 

(b) When there is a guardian, an interim 
guardian, or a person holding a valid, 
durable power of attorney for a budget 
unit member, but such person is unable, 
fails, or refuses to act promptly to 
make the resources actually available to 
meet the needs of the budget unit mem- 
ber, a referral shall be made to the 
county department of social services of 
a determination of whether the guardian 
or attorney in fact is acting in the best 
interests of the member and if not, 
contact the clerk of court for interven- 



414 



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PROPOSED RULES 



) 



tion. The resources shall be excluded 
in determining financial eligibility 
pending action by the clerk of court. 

(c) When a Medicaid application is filed on 
behalf of an individual who: 

(i) is alleged to be mentally incompetent, 
(ii) has or may have a legal interest in a 
resource that affects the individual's 
eligibility, and 
(iii) does not have a representative with 
legal authority to use or dispose of the 
individual's resources, the individual's 
representative or family member shall 
be instructed to file within 30 calen- 
dar days a judicial proceeding to 
declare the individual incompetent and 
appoint a guardian. If the representa- 
tive or family member either fails to 
file such a proceeding within 30 
calendar days or fails to timely con- 
clude the proceeding, a referral shall 
be made to the services unit of the 
county department of social services 
for guardianship services. If the 
allegation of incompetence is support- 
ed by a physician's certification or 
other competent evidence from sourc- 
es including but not limited to physi- 
cians, nurses, social workers, psy- 
chologists, relatives, friends or others 
with knowledge of the condition of 
the individual, the resources shall be 
excluded except as provided in Sub- 
items (l)(d) or (e) of this Rule. 

(d) The budget unit member's resources 
shall be counted in determining his 
eligibility for Medicaid beginning the 
first day of the month following the 
month a guardian of the estate, general 
guardian or interim guardian is appoint- 
ed, provided that after the appointment, 
property which cannot be disposed of 
or used except by order of the court 
shall continue to be excluded until 
completion of the applicable procedures 
for disposition specified in Chapters 1 
or 35A of the North Carolina General 
Statutes . 

(e) When the court rules that the budget 
unit member is competent or no ruling 
is made because of the death or recov- 
ery of the member, his resources shall 
be counted except for periods of time 
for which it can be established by com- 
petent evidence from sources including 



but not limited to physicians, nurses, 
social workers, psychologists, relatives, 
friends or others with knowledge of the 
condition of the individual that the 
member was in fact incompetent. Any 
such showing of incompetence is sub- 
ject to rebuttal by competent evidence 
as specified herein and in Sub-item 
(l)(c) of this Rule. 

(2) The limitation of resources held for 
reserve for the budget unit shall be as 
follows: 

(a) For Family and Children's related 
categorically needy cases, one thousand 
dollars ($1,000) per budget unit; 

(b) For aged, blind or disabled cases and 
Family and Children's related medically 
needy cases, one thousand five hundred 
dollars ($1,500) for a budget unit of 
one person, two thousand two hundred 
fifty dollars ($2,250) for a budget unit 
of two persons and increases of one 
hundred dollars ($100.00) for each 
additional person in the budget unit 
over two, not to exceed a total of three 
thousand, fifty dollars ($3,050). 

(3) If the value of countable resources of the 
budget unit exceeds the reserve allowance 
for the unit, the case shall be ineligible: 

(a) For Family and Children's related cases 
and aged, blind or disabled cases pro- 
tected by grandfathered provisions, and 
medically needy cases not protected by 
grandfathered provision, eligibility shall 
begin on the day countable resources 
are reduced to allowable limits or ex- 
cess income is spent down, whichever 
occurs later; 

(b) For categorically needy aged, blind or 
disabled cases not protected by grand- 
fathered provisions, eligibility shall 
begin no earlier than the month count- 
able resources are reduced to allowable 
limits as of the first moment of the first 
day of the month. 

(4) Resources counted in the determination 
of financial eligibility for categorically 
needy and medically needy aid to the 
aged, blind, or disabled cases protected 
by grandfathered provisions are: 

(a) Cash on hand; 

(b) The current balance of savings ac- 
counts, except savings of a student 
saving his earnings for educational 
purposes; 



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415 



PROPOSED RULES 



(c) The current balance of checking ac- 
counts; 

(d) Cash value of life insurance policies 
when the total face value of all policies 
that accrue cash value exceeds one 
thousand five hundred dollars ($1,500); 

(e) Equity in motor vehicles, including 
motor homes, determined to be 
non-essential according to Rule .0403 
of this Subchapter; 

(f) Equity in excess of one thousand dol- 
lars ($1,000) in motor vehicles, includ- 
ing motor homes, determined to be 
essential according to Rule .0403 of 
this Subchapter; 

(g) Stocks, bonds, mutual fund shares, 
certificates of deposit and other liquid 
assets; 

(h) Negotiable and salable promissory notes 
and loans; 

(i) Trust funds; 

(j) The portion of lump sum payments 
remaining after the month of receipt; 

(k) Individual Retirement Accounts or other 
retirement accounts or plans; 

(1) Equity in real property not used as the 

homesite or not producing an income; 

(m) Value of burial spaces other than spaces 
designated for the eligible individual, 
the eligible individual's spouse, and the 
eligible individual's immediate family 
which includes the eligible individual's 
minor and adult children, stepchildren, 
and adopted children, brothers, sisters, 
parents, adoptive parents, and the 
spouses of those persons; 

(n) Salable remainder interest in life-estate 
property not used as the budget unit's 
homesite; 

(o) Patient accounts in long term care 
facilities. 
(5) Resources counted in the determination 
of financial eligibility for aid to categori- 
cally needy aged, blind or disabled cases 
not protected by grandfathered provisions 
are: 

(a) Cash on hand; 

(b) The balance of savings accounts, except 
savings of a student saving his earnings 
for educational purposes; 

(c) The balance of savings account, except 
for aged, blind or disabled individuals 
who have a plan for achieving self- 
support (PASS) that is approved by the 
Social Security Administration; 



(d) {e) The balance of checking accounts 
less the current monthly income which 
had been deposited to meet the budget 
unit's needs when reserve was verified 
or lump sum income from self-employ- 
ment deposited to pay annual expenses; 

(e) fd) Cash value of life insurance policies 
when the total face value of all policies 
that accrue cash value exceeds one 
thousand five hundred dollars ($1,500); 

(f) (e) Trust funds; 

(g) (f) Stocks, bonds, mutual fund shares, 
certificates of deposit and other liquid 
assets; 

(h) fg) Negotiable and salable promissory 

notes and loans; 
(i) fk) Revocable burial contracts and 

burial trusts; 
(j) i+) The portion of lump sum payments 

remaining after the month of receipt; 
(k) if) Individual Retirement Accounts or 

other retirement accounts or plans; 
(1) fk-) Patient accounts in long term care 

facilities; 
(m) {ty Equity in motor vehicles determined 
to be non-essential under Rule .0403 of 
this Subchapter or, if no motor vehicle 
is excluded as essential, any equity in 
excess of four thousand five hundred 
dollars ($4,500) in a motor vehicle; 
(n) fm-) Equity in real and/or personal 
property when the combined equities is 
six thousand dollars ($6,000) or less 
and the property does not yield a net 
annual income of at least six percent of 
the equities; 
(o) fa) Equity in real and/or personal prop- 
erty when the combined equities exceed 
six thousand dollars ($6,000); 
(p) {e) Equity in personal property, subject 
to (5) (m) and (n) of this Rule, is limit- 
ed to: 
(i) Mobile homes not used as homesite, 
(ii) Boats, boat trailers and boat motors, 
(iii) Campers, 

(iv) Farm and business equipment; 

(q) (p) Equity in real property, subject to 

(5) (m) and (n) of this Rule, is limited 

to: 

(i) Value of burial spaces other than 

spaces designated for the eligible 

individual, the eligible individual's 

spouse, and the eligible individual's 

immediate family which includes the 

eligible individual's minor and adult 



416 



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PROPOSED RULES 



children, stepchildren, and adopted 
children, brothers, sisters, parents, 
adoptive parents, and the spouses of 
those persons; 
(ii) Fee simple interest; 
(iii) Salable remainder interest; 
(iv) Tenancy by the entireties interest 
only. 
(6) Resources counted in the determination 
of financial eligibility for aid to medically 
needy aged, blind or disabled cases not 
protected by grandfathered provisions 
are: 

(a) Cash on hand; 

(b) The balance of savings accounts, except 
savings of a student saving his earnings 
for educational purposes; 

(c) The balance of savings accounts, except 
for aged, blind or disabled individuals 
who have a plan for achieving self- 
support (PASS) that is approved by the 
Social Security Administration; 

(d) {e) The balance of checking accounts 
less the current monthly income which 
had been deposited to meet the budget 
unit's needs when reserve was verified 
or lump sum income from self-employ- 
ment deposited to pay annual expenses; 

(e) {d) Cash value of life insurance policies 
when the total face value of all policies 
that accrue cash value exceeds one 
thousand dollars ($1,000); 

(f) (e) Trust funds; 

(g) 0) Stocks, bonds, mutual fund shares, 
certificates of deposit and other liquid 
assets; 

(h) fg-) Negotiable and salable promissory 
notes and loans; 

(i) fh-) Revocable burial contracts and 

burial trusts; 

(i) {t) The portion of lump sum payments 

remaining after the month of receipt; 

(k) £}) Individual Retirement Accounts or 
other retirement accounts or plans; 

(1) fk) Patient accounts in long term care 
facilities; 

(m) {+) Equity in motor vehicles determined 
to be non-essential under Rule .0403 of 
this Subchapter or, if no motor vehicle 
is excluded as essential, any equity in 
excess of four thousand five hundred 
dollars ($4,500) in a motor vehicle; 

(n) fm) Equity in real property and person- 
al property that does not produce a net 
annual income; 



(0) (ft) Equity in personal property, subject 
to (6)(m) of this Rule, is limited to: 

(i) Mobile homes not used as homesite, 
(ii) Boats, boat trailers and boat motors, 
(iii) Campers, 

(iv) Farm and business equipment; 
(p) (o) Equity in real property, subject to 
(6)(m) of this Rule, is limited to interest 
in real estate other than that used as the 
budget unit's homesite and includes: 
(i) Fee simple interest, 
(ii) Tenancy by the entireties interest 

only, 
(iii) Salable remainder interest, 
(iv) Value of burial spaces other than 
spaces designated for the eligible 
individual, the eligible individual's 
spouse, and the eligible individual's 
immediate family which includes the 
eligible individual's minor and adult 
children, stepchildren, and adopted 
children, brothers, sisters, parents, 
adoptive parents, and the spouses of 
those persons. 
(7) Resources counted in the determination 
of financial eligibility for categorically 
needy Family and Children's related 
cases are: 

(a) Cash on hand; 

(b) The balance of savings accounts, in- 
cluding savings of a student saving his 
earnings for school expenses; 

(c) The balance of checking accounts less 
the current monthly income which had 
been deposited to meet the budget unit's 
monthly needs when reserve was veri- 
fied; 

(d) The portion of lump sum payments 
remaining after the month of receipt; 

(e) Cash value of life insurance policies 
owned by the budget unit; 

(f) Revocable trust funds; 

(g) Stocks, bonds, mutual fund shares, 
certificates of deposit and other liquid 
assets; 

(h) Negotiable and salable promissory notes 

and loans; 
(i) Revocable pre-paid burial contracts; 

(j) Patient accounts in long term care 

facilities; 
(k) Individual Retirement Accounts or other 

retirement accounts or plans; 

(1) Equity in non-essential personal proper- 
ty limited to: 

(i) Mobile homes not used as home, 



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417 



PROPOSED RULES 



(ii) Boats, boat trailers and boat motors, 
(iii) Campers, 

(iv) Farm and business equipment; 
(v) Equity in excess of one thousand five 
hundred dollars ($1 ,500) in one motor 
vehicle determined to be essential 
under Rule .0403 of this Subchapter; 
(vi) Equity in motor vehicles determined 
to be non-essential under Rule .0403 
of this Subchapter; 
(m) Equity in real property is limited to 
interest in real estate other than that 
used as the budget unit's homesite and 
is limited to: 
(i) Fee simple interest, 
(ii) Tenancy by the entireties interest 

only, 
(iii) Salable remainder interest, 
(iv) Value of burial plots. 
(8) Resources counted in the determination 
of financial eligibility for medically 
needy Family and Children's related 
cases are: 

(a) Cash on hand; 

(b) The balance of savings accounts, in- 
cluding savings of a student saving his 
earnings for school expenses; 

(c) The balance of checking accounts less 
the currently monthly income which 
had been deposited to meet the budget 
unit's monthly needs when reserve was 
verified or lump sum income from 
self-employment deposited to pay annu- 
al expenses; 

(d) Cash value of life insurance policies 
when the total face value of all policies 
that accrue cash value exceeds one 
thousand five hundred dollars ($1 ,500); 

(e) Trust funds; 

(f) Stocks, bonds, mutual fund shares, 
certificates of deposit and other liquid 
assets; 

(g) Negotiable and salable promissory notes 
and loans; 

(h) Revocable prepaid burial contracts; 
(i) Patient accounts in long term care 

facilities; 
(j) Individual Retirement Accounts or other 

retirement accounts or plans; 
(k) Equity in non-essential, non-income 
producing personal property limited to: 
(i) Mobile home not used as home, 
(ii) Boats, boat trailers and boat motors, 
(iii) Campers, 
(iv) Farm and business equipment. 



(v) Equity in motor vehicles determined 
to be non-essential under Rule .0403 
of this Subchapter; 
(1) Equity in real property is limited to 

interest in real estate other than that 
used as the budget unit's homesite and 
is limited to: 
(i) Fee simple interest, 
(ii) Tenancy by the entireties interest 

only, 
(iii) Salable remainder interest, 
(iv) Value of burial plots. 

Authority G.S. 108A-54; 108A-55; 108A-58; 42 
U.S.C. 703, 704 1396; 42 C.F.R. 435.121; 42 
C.F.R. 435.210; 42 C.F.R. 435.711; 42 C.F.R. 
435.712; 42 C.F.R. 435.734; 42 C.F.R. 435.823; 
42 C F. R. 435. 840; 42 C F. R. 435. 841; 42 C. F. R. 
435-845; 42 C.F.R. 445.850; 42 C.F.R. 435.851; 
45 C. F. R. 233. 20; 45 C. F. R. 233. 51 . 

.0313 INCOME 

(a) Income from the following sources shall be 
counted in the calculation of financial eligibility: 
(1) Unearned. 

(A) RSDI, 

(B) Veteran's Administration, 

(C) Railroad Retirement, 

(D) Pensions or retirement benefits, 

(E) Workmen's Compensation, 

(F) Unemployment Compensation, 

(G) Support Payments, 
(H) Contributions, 

(I) Dividends or interest from stocks, 
bonds, and other investments, 

(J) Trust fund income, 

(K) Private disability or employment 
compensation, 

(L) That portion of educational loans, 
grants, and scholarships for mainte- 
nance, 

(M) Work release, 

(N) Lump sum payments, 

(O) Military allotments, 

(P) Brown Lung Benefits, 

(Q) Black Lung Benefits, 

(R) Trade Adjustment benefits, 

(S) SSI when the client is in long term 
care, 

(T) VA Aid and Attendance when the 
client is in long term care, 

(U) Foster Care Board payments in excess 
of state maximum rates for M-AF 
clients who serve as foster parents, 

(V) Income allocated from an institutional- 



418 



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PROPOSED RULES 



(W) 



(X) 
(Y) 

(Z) 



(2) 



(A) 



ized spouse to the client who is the 
community spouse as stated in 42 
U.S.C. 1396r-5(d), 
Income allowed from an institutional- 
ized spouse to the client who is a 
dependent family member as stated in 
42 U.S.C. 1396r-5(d), 
Sheltered Workshop Income, 
Loans if repayment of a loan and not 
counted in reserve. 
Income deemed to Family and 
Children's clients. 
Earned Income. 

wages, salaries, and 



(B) 
(C) 

(D) 

(E) 
(F) 



(G) 



income including 



(H) 
(I) 



(3) 



Income from 
commissions, 
Farm Income, 
Small business 
self-employment, 
Rental income, 

Income from roomers and boarders, 
Earned income of a child client who 
is a part-time student and a full-time 
employee, 

Supplemental payments in excess of 
state maximum rates for Foster Care 
Board payments paid by the county to 
Family and Children's clients who 
serve as foster parents, 
Earned income tax credits for the 
Aged, Blind or Disabled only, 
VA Aid and Attendance paid to a 
budget unit member who provides the 
aid and attendance. 
Additional sources of income not listed 
in (1) or (2) of this Rule will be consid- 
ered available unless specifically ex- 
cluded by (b) of this Rule, or by regu- 
lation or law. 
(b) Income from the following sources shall not 
be counted in the calculation of financial eligibili- 
ty: 

Earned income of a child who is a 
part-time student but is not a full-time 
employee; 

Earned income of a child who is a 
full-time student; 

Incentive payments and training allow- 
ances made to WIN training partici- 
pants; 

Payments for supportive services or 
reimbursement of out-of-pocket expens- 
es made to volunteers serving as VIS- 
TA volunteers, foster grandparents, 
senior health aides, senior companions, 
Service Corps of Retired Executives, 



(1) 

(2) 
(3) 

(4) 



Active Corps of Executives, Retired 
Senior Volunteer Programs, Action 
Cooperative Volunteer Program, Uni- 
versity Year for Action Program, and 
other programs under Titles I, II, and 
III of Public Law 93-113; 

(5) Foster Care Board payments equal to or 
below the state maximum rates for 
Family and Children's clients who 
serve as foster parents; 

(6) Earnings of M-AABD clients who are 
participating in ADAP (Adult Develop- 
mental Activity Program) training 
programs for a specified period; 

(7) Income that is unpredictable, i.e., 
unplanned and arising only from time to 
time. Examples include occasional 
yard work, sporadic babysitting, etc.; 

(8) Relocation payments; 

(9) Value of the coupon allotment under 
the Food Stamp Program; 

(10) Food (vegetables, dairy products, and 
meat) grown by or given to a member 
of the household. If home grown pro- 
duce is sold, count as earned income; 

(11) Benefits received from the Nutrition 
Program for the Elderly; 

(12) Food Assistance under the Child Nutri- 
tion Act and National School Lunch 
Act; 

(13) Assistance provided in cash or in kind 
under any governmental, civic, or 
charitable organization whose purpose 
is to provide social services or voca- 
tional rehabilitation. This includes 
V.R. incentive payments for training, 
education and allowance for depen- 
dents, grants for tuition, chore services 
under Title XX of the Social Security 
Act, VA aid and attendance or aid to 
the home bound if the individual is in a 
private living arrangement; 

(14) Loans or grants such as the GI Bill, 
civic, honorary and fraternal club 
scholarships, loans, or scholarships 
granted from private donations to the 
college, etc., except for any portion 
used or designated for maintenance; 

(15) Loans, grants, or scholarships to under- 
graduates for educational purposes 
made or insured under any program 
administered by the U.S. Department of 
Education; 

(16) Benefits received under Title VII of the 
Older Americans Act of 1965; 



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419 



PROPOSED RULES 



(17) Payments received under the Experi- 
mental Housing Allowance Program 
(EHAP); 

(18) In-kind shelter and utility contributions 
paid directly to the supplier. For Fami- 
ly and Children's cases, shelter, utili- 
ties, or household furnishings made 
available to the client at no cost; 

(19) Food/clothing contributions in Family 
and Children's cases (except for food 
allowance for persons temporarily 
absent in medical facilities up to 12 
months); 

(20) Income of a child under 21 in the bud- 
get unit who is participating in JTPA 
and is receiving as a child; 

(21) Housing Improvement Grants approved 
by the N.C. Commission of Indian 
Affairs or funds distributed per capital 
or held in trust for Indian tribe mem- 
bers under P. L. 92-254, P.L. 93-134 or 
P.L. 94-540; 

(22) Payments to Indian tribe members as 
permitted under P.L. 94-114; 

(23) Payments made by Medicare to a home 
renal dialysis patient as medical bene- 
fits; 

(24) SSI except for individuals in long term 
care; 

(25) HUD Section 8 benefits when paid 
directly to the supplier or jointly to the 
supplier and client; 

(26) Benefits received by a client who is a 
representative payee for another indi- 
vidual who is incompetent or incapable 
of handling his affairs. Such benefits 
must be accounted for separate from the 
payee's own income and resources; 

(27) Special one time payments such as 
energy, weatherization assistance, or 
disaster assistance that is not designated 
as medical; 

(28) The value of the U.S. Department of 
Agriculture donated foods (surplus 
commodities); 

(29) Payments under the Alaska Native 
Claims Settlement Act. Public Law 
92-203; 

(30) Any payment received under Title II of 
the Uniform Relocation Assistance and 
Real Property Acquisition Policies Act 
of 1970; 

(31) HUD Community Development Block 
Grant funds received to finance the 
renovation of a privately owned resi- 



dence; 

(32) Reimbursement for transportation ex- 
penses incurred as a result of participa- 
tion in the Community Work Experi- 
ence Program or for use of client's own 
vehicle to obtain medical care or treat- 
ment; 

(33) Adoption assistance; 

(34) Incentive payments made to a client 
participating in a vocational rehabilita- 
tion program; 

(35) Title XX funds received to pay for 
services rendered by another individual 
or agency: 

(36) Any amount received as a refund of 
taxes paid; 

(37) Any Cost of Living Allowance (COLA) 
increase in the RSDI benefit for a 
disabled widow or widower resulting 
from the 1983 Actuarial Reduction 
Formula (ARE) which caused the loss 
of SSI effective January. 1984, for an 
M-AA, M-AB, or M-AD client: 

(A) Who received a disabled widow or 
widower's benefit and SSI simulta- 
neously in 1983 as identified by the 
Social Security Administration, and 

(B) Who lost SSI because of the elimina- 
tion of the ARE, and 

(C) Who is not now eligible for SSI, and 

(D) Who was between 50 and 59 years of 
age in 1983, and 

(E) Who applied for Medicaid no later 
than June 30, 1988, and 

(F) Who is classified as Categorically 
Needy; 

(38) Any Cost of Living Allowance (COLA) 
increase in the RSDI benefit for a client 
or his financially responsible spouse or 
parent(s), who: 

(A) Is classified as Categorically Needy 
for the M-AA, M-AB, or M-AD 
programs, and 

(B) Lost SSI or State/County Special 
Assistance (S/C-SA) for any reason, 
and 

(C) Would currently be eligible for SSI or 
S/C-SA if all COLA's since he was 
last eligible for and received RSDI 
and SSI or S/C-SA concurrently were 
disregarded: 

(39) The RSDI benefit for a client who: 

(A) Is a disabled widow or widower or 
surviving divorced spouse, and 

(B) Received SSI for the month prior to 



420 



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PROPOSED RULES 



the month he began receiving RSDI, 
and 

(C) Would continue to be eligible for SSI 
if the RSDI benefit were not counted, 
and 

(D) Is not entitled to a Medicare Part A. 
(40) Earnings of aged, blind and disabled 

individuals who have a plan for achiev- 
ing self-support (PASS) that is ap- 
proved by the Social Security Adminis- 
tration. 
(c) Income levels for purpose of establishing 
financial eligibility are those amount approved by 
the N.C. General Assembly and stated in the 
Appropriations Act for categorically needy and 
medically needy classifications, except for the fol- 
lowing: 

(1) The income level shall be reduced by 
one-third when an aged, blind or dis- 
abled individual lives in the household 
of another person and does not pay his 
proportionate share of household ex- 
penses. The one-third reduction shall 
not apply to children under nineteen 
years of age who live in the home of 
their parents; 

(2) An individual living in a long term care 
facility or other medical institution shall 
be allowed a thirty dollar ($30.00) 
income level, and a couple in the same 
room in a long term care facility shall 
be allowed a sixty dollar ($60.00) 
income level; 

(3) Individuals who are in a long term care 
facility for a temporary period of six 
months or less shall be allowed the 
income level provided by statute in 
addition to the thirty dollar ($30.00) 
level. 

Authority G.S. 108A-25(b); 108A-61; 42 C.F.R. 
435.135; 42 C.F.R. 435.731; 42 C.F.R. 435.732; 
42 C.F.R. 435. 733; 42 C.F.R. 435.811; 42 C.F.R. 
435.812; 42 C.F.R. 435.831; 42 C.F.R. 435.832; 
42 C.F.R. 435.1007; 42 U.S.C. 1383c(b); 42 
V.S.C 1383c(d); 45 C.F.R. 233.20 ;P.L. 99-272; 
Section 12202; Alexander v. Flaherty Consent 
Order filed February 14. 1992. 

SECTION .0400 - BUDGETING 
PRINCIPALS 

.0403 RESERVE 

(a) The value of resources held by the client or 
by a financially responsible person shall be consid- 



ered available to the client in determining count- 
able reserve for the budget unit. 

(b) Jointly owned resources shall be counted as 
follows: 

(1) The value of resources owned jointly 
with a non-financially responsible per- 
son who is a recipient of another public 
assistance budget unit shall be divided 
equally between the budget units; 

(2) The value of liquid assets and personal 
property owned jointly with a 
non-financially responsible person who 
is not a client of another public assis- 
tance budget unit shall be available to 
the budget unit member if he can dis- 
pose of the resource without the consent 
and participation of the other owner or 
the other owner consents to and, if 
necessary, participates in the disposal of 
the resource; 

(3) The client's share of the value of real 
property owned jointly with a 
non-financially responsible person who 
is not a member of another public 
assistance budget unit shall be available 
to the budget unit member if he can 
dispose of his share of the resource 
without the consent and participation of 
the other owner or the other owner 
consents to and, if necessary, partici- 
pates in the disposal of the resource. 

(c) The terms of a separation agreement, divorce 
decree, will, deed or other legally binding agree- 
ment or legally binding order shall take precedence 
over ownership of resources as stated in (a) and 
(b) of this Rule, except as provided in Paragraph 
(o) of this Rule. 

(d) The reserve limit for the budget unit for 
aged, blind or disabled cases shall be determined 
as follows: 

(1) The reserve limit for two persons shall 
be allowed when spouses live together 
in a private living situation or when the 
couple share the same room in long 
term care; 

(2) Allow the reserve limit for one person 
for the Community Alternative Program 
(CAP) client with a spouse at home and 
only count the resources that are avail- 
able to the CAP client in determining 
his countable reserve; 

(3) The reserve limit for one person is 
allowed for the client who is in long 
term care and the spouse remains in the 
home; 



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421 



PROPOSED RULES 



(4) The reserve allowance for one person is 
allowed for the client who is in long 
term care and the spouse is in domicili- 
ary care; 

(5) The reserve limit allowed for a blind or 
disabled minor child who lives with his 
parent or parents or is temporarily 
absent includes the child and the parent 
or parents with whom the child lives; 

(6) The reserve limit allowed for a blind or 
disabled dependent child under age 19 
who is in long term care shall include 
only the child if his care and treatment 
are expected to exceed 12 months, as 
certified by the child's physician. 

(e) Countable resources for Family and 
Children's related cases will be determined as 
follows: 

(1) The resources of a spouse, who is not a 
stepparent, shall be counted in the 
budget unit's reserve allowance if the 
spouses live together or one spouse is 
temporarily absent in long term care 
and the spouse is not a member of 
another public assistance budget unit; 

(2) The resources of a client and a finan- 
cially responsible parent or parents 
shall be counted in the budget unit's 
reserve limit if the parents live together 
or one parent is temporarily absent in 
long term care and the parent is not a 
member of another public assistance 
budget unit; 

(3) The resources of the parent or parents 
shall not be considered if a child under 
age 21 requires care and treatment in a 
medical institution and his physician 
certifies that the care and treatment are 
expected to exceed 12 months. 

(f) The homesite shall be excluded from count- 
able resources as follows: when it is the principal 
place of residence for the client. — The home s ite i s 
d e fined as the house and lot. plus all buildings on 
the lot, in the city or the house and the land the 
hou s e i s on, to a maximum of one aere. plus all 
buildings on the acre, in a rural area. 

(1) For all aged, blind or disabled cases 
and medically — needy families family 
and children children's related cases, » 
addition to the homesite is the client's 
principal place of residence, which 
includes the house and in the city the 
lot on which the house sits and all the 
buildings on the lot, or in a rural area 
the land on which the house sits, up to 



(2) 



iH 



one acre, and all buildings on the acre, 
and, for all aged, blind, or disabled 
cases and medically needy family and 
children's related cases, the homesite 
shall include real property contiguous to 
the home with a tax value of less than 
also includes up to twelve thousand 
dollars ($12,000) tax value in real 
property contiguous to the principal 
place of residence, regardless of wheth- 
er the principal place of residence is 
owned by the client. 
For all aged, blind or disabled cases the 
equity in the homesite shall be excluded 
when the client i s in long term carc -afld 
his — spous e , — minor children — or adult 
disabled children remain in the home or 
a physician has certified in writing that 
the client will return home within six 
months from the date of entry into the 
hospital — ef — long term — eare — facility. 
Additional value in real property con- 
tiguous to the principal place of resi- 
dence shall be a countable resource. 
The exclusion of the homesite from 
countable resources set forth in Sub- 



paragraphs (f)( 1 ) and (2) of this Rule 
shall also be applicable for all aged, 
blind, or disabled cases when the client 
is in long term care and his spouse, 
minor children, or adult disabled chil- 
dren remain in the home or a physician 
has certified in writing that the client 
will return home within six months 
from the date of entry into the hospital 
or long term care facility. 
(g) For categorically needy aged, blind or 
disabled cases without grandfathered protection, 
nonhome property and personal property that is 
income producing shall be excluded from resourc- 
es when the budget unit's equity in the property 
does not exceed six thousand dollars ($6,000) and 
the property produces a net annual return of at 
least six percent of the excludable equity value for 
each income producing activity. 

(h) For medically needy Families and Children 
cases and medically needy aged, blind or disabled 
cases without grandfathered protection, if the client 
or any member of the budget unit has ownership in 
a probated estate, the value of the individual's 
proportionate share of the countable property shall 
be a countable resource unless the property can be 
excluded as the homesite or as income producing 
property, as stated in (e) and (f) of this Rule. 
(i) The equity in non-excluded real property 



422 



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PROPOSED RULES 



shall be counted toward the reserve level of the 
budget unit. 

(j) A motor vehicle shall be determined an 
essential vehicle as follows: 

(1) For aged, blind or disabled individuals 
with grandfathered protection, if public 
transportation cannot be used because it 
is not available or because of his physi- 
cal or mental condition and the vehicle 
is needed to: 

(A) Obtain regular medical treatment, or 

(B) Retain employment, or 

(C) Go shopping if the shopping area is 
more than one-half mile from the 
client's home, or 

(D) Go shopping if the client is responsi- 
ble for shopping and is physically 
limited from walking one-half mile, 
or 

(E) Transport children to and from school 
and the school is not within reason- 
able walking distance; 

(2) For aged, blind or disabled cases with- 
out grandfathered protection and medi- 
cally needy Family and Children's 
related cases, a vehicle must be special- 
ly equipped for use by a handicapped 
individual, used to obtain regular medi- 
cal treatment, or used to retain employ- 
ment. 

(k) The value of non-excluded motor vehicles is 
the Current Market Value, less encumbrances. If 
the applicant/recipient disagrees with the assigned 
value, he has the right to rebut the value. 

(1) The current market value of a remainder 
interest in life estate shall be determined by apply- 
ing the remainder interest percentage from the 
chart in the Medicaid Eligibility Manual to the tax 
value of the property. A lower current market 
value for remainder interest may be established by 
offering the interest for sale and the highest offer 
received, if any, is less than the value determined 
by application of the values chart to the tax value. 

(m) For all aged, blind or disabled cases, up to 
one thousand five hundred dollars ($1 ,500) may be 
excluded from countable resources for the client 
and his spouse under the burial exclusion. Apply 
the one thousand five hundred dollar ($1,500) 
burial exclusion for each individual separately. 
Only the following resources may be excluded and 
they must be excluded in the following order: 
(1) Irrevocable pre-need burial contracts, 
burial trusts, or other irrevocable ar- 
rangements established for burial ex- 
penses; 



(2) Face value of life insurance policies 
that accrue cash value when the total 
face value of all policies for the budget 
unit is one thousand five hundred dol- 
lars ($1,500) or less and the cash value 
was not counted in reserve; 

(3) Revocable burial contracts or trusts 
established for burial expenses. Any 
excess remains a countable resource; 

(4) Cash value of life insurance that has 
been designated for burial expenses if 
the cash value was considered in deter- 
mining countable reserve. Any cash 
value in excess of one thousand five 
hundred dollars ($1,500) remains a 
countable resource. 

(n) For all aged, blind or disabled cases and 
medically needy Family and Children's related 
cases, the value of trust funds established for the 
client or for any member of the budget unit is a 
countable resource unless it is determined by the 
courts that the funds are not available for the 
beneficiary of the trust. 

(o) For a married individual: 

(1) Resources available to the individual 
are available to his or her spouse who 
is a noninstitutionalized applicant or 
recipient and who is either living with 
the individual or temporarily absent 
from the home, irrespective of the 
terms of any will, deed, contract, ante- 
nuptial agreement, or other agreement, 
and irrespective of whether or not the 
individual actually contributed the 
resources to the applicant or recipient. 
All resources available to an applicant 
or recipient under these rules must be 
considered when determining his or her 
countable reserve. 

(2) For an institutionalized spouse as de- 
fined in 42 U.S.C. 1396r-5(h), avail- 
able resources shall be determined in 
accordance with 42 U.S.C. 1396r-5(c), 
except as specified in Paragraph (p) of 
this Rule. 

(p) For an institutionalized individual, the 
availability of resources are determined in accor- 
dance with 42 U.S.C. 1396r-5. Resources of the 
community spouse are not counted for the institu- 
tionalized spouse when: 

(1) Resources of the community spouse 
cannot be determined or cannot be 
made available to the institutionalized 
spouse because the community spouse 
cannot be located; or 



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423 



PROPOSED RULES 



(2) The couple has been continuously sepa- 
rated for 12 months at the time the 
institutionalized spouse enters the insti- 
tution. 

Authority G.S. 108A-54; 108A-55; 143-127. 1(d); 
S.L. 1983, c. 1116; 42 U.S. C. 1396r-5; 42 U.S. C. 
1396a(a)(17); 42 U.S.C. 1396a(a)51; 42 C.F.R. 
435.602; 42 C.F.R. 435.711; 42 C.F.R. 435.712; 
42 C. F. R. 435. 723; 42 C. F. R. 435. 734; 42 C F. R. 
435.821; 42 C.F.R. 435.822; 42 C.F.R. 435.823; 
42 C.F.R. 435.845; 45 C.F.R. 233.20; 45 C.F.R. 
233.51; Deficit Reduction Act of 1984 (P.L. 
98-369), Section 2373; Correll vs. 
DSS/DMA/DHR, No. 406PA91 (North Carolina 
Supreme Court); Schweiker v. Gray Panthers, 453 
U.S. 34. 101 S.Ct. 2633, 69 L. Ed. 2d 460 (1981). 

.0406 DEDUCTIBLE 

(a) Deductible shall apply to clients living in the 
community in private living quarters or residential 
group facilities, except that a client in long term 
care who is expected to return to his home within 
six months retains his private living status. 

(b) The client or his representative shall be 
responsible for providing bills, receipts, insurance 
benefit statements or Medicare EOB to establish 
incurred medical expenses and his responsibility 
for payment. If the client has no representative 
and he is physically or mentally incapable of 
accepting this responsibility, the county shall assist 
him. 

(c) Expenses shall be applied to the deductible 
when they meet the following criteria: 

(1) The expenses are for medical care or 
service recognized under state or feder- 
al tax law; 

(2) The are incurred by a budget unit mem- 
ber; 

(3) They are incurred: 

(A) During the certification period for 
which eligibility is being determined 
and the requirements of Paragraph (d) 
of this Rule are met; or 

(B) Prior to the certification period and 
the requirements of Paragraph (e) of 
this Rule are met. 

(d) Medical expenses incurred during the certifi- 
cation period shall be applied to the deductible if 
the requirements in Paragraph (c) of this Rule are 
met and: 

( 1 ) The expenses are not subject to pay- 
ment by any third party including insur- 
ance, government agency or program 
except when such program is entirely 



funded by state or local government 
funds, or private source; or 

(2) The private insurance has not paid such 
expenses by the end of the application 
time standard; or 

(3) For certified cases, the insurance has 
not paid by the time that incurred ex- 
penses equal the deductible amount; or 

(4) The third party has paid and the client 
is responsible for a portion of the 
charges. 

(e) The unpaid balance of a Medical expense 
incurred prior to the certification period shall be 
applied to the deductible if the requirements in 
Paragraph (c) of this Rule are met and: 

(1) The medical expense was: 

(A) Incurred within 24 months immediate- 
ly prior to: 

(i) The month of application for 
prospective or retroactive certifi- 
cation period or both; or 

(ii) The first month of any subsequent 
certification period; or 

(B) Incurred prior to the period described 
in Subparagraph (e)(1)(A) of this 
Rule; and a payment was made on the 
bill during that period; and 

(2) The medical expense: 

(A) Is a current liability; 

(B) Has not been applied to a previously 
met deductible; and 

(C) Insurance has paid any amount of the 
expense covered by the insurance. 

(f) Incurred medical expenses shall be applied to 
the deductible in the chronological order in which 
they arc incurred by calendar date except that 
expenses remaining after insurance payments for 
lump sum of charges shall be computed by except 
that : 

(1) Determining average daily charge ex 
eluding discharge date from hospital; If 
medical expenses for Medicaid covered 
services and non-covered services occur 
on the same date, apply charges for 
non-covered services first; and 

(2) Determining — average daily — in s urance 
payment for the same number of days; 
If both hospital and other covered 
medical services are incurred on the 
same date, apply hospital charges first; 
and 

(3) Subtracting — average — daily — insurance 
payment from the average daily charge 
to establish client's daily responsibility. 
If a portion of charges is still owed 



424 



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PROPOSED RULES 



after insurance payment has been made 
for lump sum charges, compute in- 
curred daily expense to be applied to 
the deductible as follows: 

(A) Determine average daily charge ex- 
cluding discharge date from hospitals; 
and 

(B) Determine average daily insurance 
payment for the same number of 
days; and 

(C) Subtract average daily insurance 
payment from the average daily 
charge to establish client's daily re- 
sponsibility. 

(g) Eligibility shall begin on the day that in- 
curred medical expenses prove reduce the deduct- 
ible is met to $0, except that the client shall be is 
financially liable for that the portion of his medical 
expenses incurred on the first day of eligibility 
which arc that were applied to the balance of 
reduce the deductible to $0. Notice of the deduct 
iblc balance shall be sent to the hospital if the 
client was hospitalized on the date deductible is 
«e*r If hospital charges were incurred on the first 
day of eligibility, notice of the amount of those 
charges applied to meet the deductible shall be sent 
to the hospital for deduction on the hospital's bill 
to Medicaid, 

(h) The receipt of proof of medical expenses and 
other verification shall be documented in the case 
record. 

Authority G.S. 108A-54; 42 C.F.R. 435.732; 42 
C. F. R. 435. 831; Alexander v. Flaherty, U. S. D. C. , 
W.D.N. C. , File Number C-C-74-483; Alexander v. 
Flaherty Consent Order filed February 14, 1992. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

i\ otice is hereby given in accordance with G.S. 
150B-21.2 that EHNR, Commission for Health 
Services intends to amend rule cited as 15 A NCAC 
13B .0201. 

1 he proposed effective date of this action is 
October 9, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on July 15, 1993 at the Highway Building, 
First Floor Auditorium, 1 South Wilmington Street, 
Raleigh, North Carolina. 



Ixeason for Proposed Action: To facilitate the 
availability of new lined landfill capacity in a 
timely manner. 

Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority on 
the speaker's list. Oral presentation lengths may 
be limited depending on the number of people that 
wish to speak at the public hearing. Only persons 
who have made comments at a public hearing or 
who have submitted written comments will be 
allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must 
either clarify previous comments or address pro- 
posed changes from staff pursuant to comments 
made during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTEREST- 
ED AND POTENTIALLY AFFECTED PERSONS, 
GROUPS, BUSINESSES, ASSOCIATIONS, INSTI- 
TUTIONS, OR AGENCIES MAKE THEIR VIEWS 
AND OPINIONS KNOWN TO THE COMMISSION 
FOR HEALTH SERVICES THROUGH THE PUB- 
LIC HEARING AND COMMENT PROCESS, 
WHETHER THEY SUPPORT OR OPPOSE ANY 
OR ALL PROVISIONS OF THE PROPOSED 
RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMIS- 
SION MEETING IF THE CHANGES COMPLY 
WITH G.S. 150B-21.2(f). 

tLditor's Note: This Rule was filed as a tempo- 
rary rule effective May 19, 1993 to expire on 
October 9, 1993 or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 

SUBCHAPTER 13B - SOLID WASTE 
MANAGEMENT 

SECTION .0200 - PERMITS FOR SOLID 
WASTE MANAGEMENT FACILITIES 



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425 



PROPOSED RULES 



.0201 PERMIT REQUIRED 

(a) No person shall establish or allow to be 
established on his land, a solid waste management 
facility, or otherwise treat, store, or dispose of 
solid waste unless a permit for the facility has been 
obtained from the Division. 

(b) The permit, except for land clearing and 
inert debris permits, shall have two parts, as 
follows: 

(1) A permit to construct a solid waste 
management facility shall be issued by 
the Division after site and construction 
plans have been approved and it has 
been determined that the facility can be 
operated in accordance with the applica- 
ble rules set forth in this Subchapter 
and so as to provide reasonable protec- 
tion to the environment and the public 
health. Except as provided in Subpara- 
graphs (b)(2) and (b)(3) of this Rule, 
Aft an applicant shall not clear or grade 
land or commence construction for a 
solid waste management facility until a 
construction permit has been issued. 

(2-) A permit to operate a solid waste man 

agement facility — H»y — not be issued 
unless it ha3 been determined that the 
facility has been constructed in accor 
dance with the con s truction permit, that 
any — pre operative — conditions — of the 
construction permit have been met. and 
that the construction permit has been 
recorded, if applicable, in accordance 
with Rule .020 4 of thi s Section. 

(2) Subject to the limitations specified in 
this Subparagraph, an applicant for a 
permit to construct a sanitary landfill 
intended to conform to the siting and 
design requirements for municipal solid 
waste landfills ("MSWLF") established 
in 40 C.F.R. Part 258 may, prior to 
issuance of a construction permit, pro- 
ceed at its own risk to clear and grade 
land, or otherwise commence construc- 
tion of the proposed MSWLF, if all the 
following conditions apply: 

The site plan for the proposed 
MSWLF has been approved by the 
Division; and 

The site has been determined by the 
Division to comply with Rules .0503 
and .0504 of this Subchapter; 
(C) The proposed MSWLF is intended to 
provide disposal capacity |n lieu of a 
currently operating unlined landfill 



(A) The site 



(B) 



which shall permanently cease accept- 
ing solid waste no later than the date 
the new MSWLF becomes operation- 

aL 
(3) An applicant for a permit to construct a 
MSWLF who desires to initiate con- 
struction prior to issuance of the permit 
shall submit a written request to the 
Director of the Division which provides 
evidence satisfactory to the Division of 
the conditions specified in Subpara- 
graph (b)(2) of this Rule, and which 
clearly specifies the maximum extent of 
clearing, grading or other construction 
the applicant proposes to undertake 
prior to receipt of its permit. Under no 
circumstances will initiation of the soil 
liner or synthetic liner construction 
begin prior to issuance of a construction 
permit. The Division Director may 
approve more limited interim construc- 
tion activity than proposed by the appli- 
cant as, in the Division Director's sole 
discretion, may be required to help 
ensure that any activity undertaken 
prior to issuance of an applicant's 
construction permit shall be in accor- 
dance with all applicable laws related to 
the protection of the environment. 
Additionally, the Division Director's 
approval shall be contingent upon the 
applicant's acknowledgement by Memo- 
randum of Agreement (MOA) with the 
Division that it is proceeding at its own 
risk and with the understanding and 
agreement that the applicant's initiation 
of such interim construction activity 
does not provide ]t with any type of 
vested right or other expectation it can 
rely on that issuance of a permit will be 
forthcoming. Furthermore, the appli- 
cant shall agree to immediately cease 
all such clearing, grading or other 
construction activity upon initial notifi- 
cation by the Division that a permit to 
construct the proposed MSWLF will 
not be issued. The applicant shall 
restore the site to original land contours 
and reestablish vegetation to the extent 
practical unless other environmentally 
acceptable restoration is approved by 
the Division. No approval shall be 
issued until the applicant has provided 
a bond determined by the Division to 
be sufficient to restore the site to the 



426 



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PROPOSED RULES 



original land contours and reestablish 
vegetation to the extent practical . 

(4) A permit to operate a solid waste man- 
agement facility may not be issued 
unless it has been determined that the 
facility has been constructed in accor- 
dance with the construction permit, that 
any pre-operative conditions of the 
construction permit have been met, and 
that the construction permit has been 
recorded, if applicable, in accordance 
with Rule .0204 of this Section. 

£5) Subparagraphs (b)(2) and (b)(3) shall be 
in effect only until October 9* 1993. 

(c) Land clearing and inert debris facilities may 
be issued a combined permit to construct and 
operate the facility. 

(d) Land clearing and inert debris facilities 
subject to Rule .0563 Item (1) may construct and 
operate after notification as provided for under 
Rule .0563 Item (2). 

(e) Permits, including those issued prior to the 
effective date of this Rule, shall be reviewed every 
five years. Modifications, where necessary, shall 
be made in accordance with rules in effect at the 
time of review for those areas of a permitted 
sanitary landfill site which have not previously 
received solid waste. 

(f) All solid waste management facilities shall be 
operated in conformity with these Rules and in 
such a manner as to prevent the creation of a 
nuisance, unsanitary conditions, or potential public 
health hazard. 

Statutory Authority G.S. 130A-294. 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that EHNR, Commission for Health 
Services intends to adopt rule cited as 15 A NCAC 
21D . 1202. No hearing is required. Rules 15A 
NCAC 21 D . 1201-1207 were previously published 
in Volume 7, Issue 24, March 15. 1993, with a 
proposed effective date of July 1 , 1993. A public 
hearing was held on March 31 , 1993. Rule 15A 
NCAC 21 D .1202 is being published to take 
comments on the proposed new text for 30 days. 
Rules 15A NCAC 21D .1201-1207 now have a 
proposed effective date of October 1 , 1993. 

1 he proposed effective date of this action is 
October 1, 1993. 



MXeasonfor Proposed Action: For the administra- 
tion of the new funding source for nutrition servic- 



Lsomment Procedures: All written comments must 
be submitted no later than 5:00 p.m. on July 2, 
1993 to Alice Lenihan, P.O. Box 1008, Raleigh, 
NC 27605-0008 (919) 715-0636. 

tLditor's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

CHAPTER 21 - HEALTH: PERSONAL 
HEALTH 

SUBCHAPTER 21D - WIC/NUTRITION 

SECTION .1200 - MATERNAL AND CHILD 

HEALTH BLOCK GRANT NUTRITION 

PROGRAM 

.1202 PROVIDER ELIGIBILITY 

Local health departments are eligible to receive 
Maternal and Child Health Block Grant Nutrition 
Program funds from the Division. All providers 
that contract for the receipt of MCH Block Grant 
Nutrition Program funds are required to provide 
services in accordance with rules of this Section. 

Statutory Authority G.S. 130 A- 361. 

TITLE 16 - DEPARTMENT OF 
PUBLIC EDUCATION 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education 
intends to amend rule cited as 16 NCAC 6H .0004. 

1 he proposed effective date of this action is 
October 1, 1993. 

1 he public hearing will be conducted at 9:30 
a.m. on June 28, 1993 at the State Board Room, 
7th Floor, Education Bldg. , 301 N. Wilmington 
St., Raleigh, NC 27601-2825. 



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427 



PROPOSED RULES 



ixeason for Proposed Action: To respond to 
change in G.S. 115C-264. 

Comment Procedures: Any interested person may 
submit views either in writing prior to or at the 
hearing or orally at the hearing. Written com- 
ments may be sent to the Department and must be 
postmarked no later than July 2, 1993 addressed 
to: Harry Wilson, Room 2806, Education Building, 
Raleigh, N.C. 

CHAPTER 6 - ELEMENTARY AND 
SECONDARY EDUCATION 

SUBCHAPTER 6H - FEDERAL PROGRAMS 

.0004 CHILD NUTRITION PROCEDURES 

(a) National School Lunch Program policies and 
standards are as follows: 

(1) A la carte sales are limited to foods 
contributing to the nutritional 
well-being of the child and aiding in the 
establishment of good food habits. 
School food authorities and sponsoring 
organizations may provide these foods 
under the following conditions: 

(A) Sponsors Except as provided by G.S. 
1 15C-264, sponsors must operate all 
food and beverage services during or 
before the established lunch period 
through the school food service de- 
partment. 

(B) The school food service department 
retains all receipts from the sale of 
these items. 

(C) Sponsors must use all food service 
income for the purpose of the school's 
non-profit child nutrition programs. 

(D) A Except as provided by G.S. 
1 15C-264, a la carte items may not 
include foods of minimum nutritional 
value, as follows: 

(i) soda water (soda pop), 

(ii) water ices, 

(iii) chewing gum, 

(iv) processed foods made predomi- 
nately from sweeteners or artifi- 
cial sweeteners with a variety of 
minor ingredients. These foods 
include hard candy, jellies and 
gums, marshmallow candies, 
fondant, licorice, spun candy, and 
candy-coated popcorn; and 



(v) confections and carbonated 
drinks. 
(E) Adults may purchase individual food 
items without purchasing a complete 
lunch. 
(2) Competitive food sales by a school of 
extra food items in the lunchroom or its 
general environs must be on a 
non-profit basis. "On a non-profit 
basis" means that the sponsor deposits 
income from the sale of such food items 
to the account of the school's non-profit 
lunch and breakfast programs and uses 
the income solely for these programs. 

(A) The Except as provided by G.S. 
1 15C-264, the school may sell extra 
food items after the established lunch 
hour is over, only with the approval 
of the LEA. The established lunch 
hour is over when the last pupil has 
been served for the day. 

(B) Occupational home economics instruc- 
tional programs which operate under 
an approved annual vocational educa- 
tion plan and which involve the prep- 
aration and sale of foods to individu- 
als other than students are not in 
competition with the child nutrition 
program. 

(C) The Department may deny the oppor- 
tunity to participate in the program to 
any school food authority which 
operates in violation of state policy. 

(b) Sponsors must use receipts from child 
nutrition programs for the cost of operation as 
outlined in current federal regulations and state 
policy. 

(c) No full-time public school employee is 
eligible for part-time employment in food services. 

(d) The only adults who may eat in the school 
food service department are school employees, 
personnel on official school business and invited 
local patrons. These persons pay, as a minimum, 
the adult price for lunch. 

Statutory Authority G.S. 115C-263; 115C-264. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARD 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Certification 
Board for Social Work intends to amend rules cited 
as 21 NCAC 63 .0104, .0201. .0306, .0401, 



428 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



PROPOSED RULES 



. 0501; and adopt rule cited as 21 NCA C 63 .0210. 

1 he proposed effective date of this action is 
September 1, 1993. 

1 he public hearing will be conducted at 10:00 - 
11:00 a.m. on June 18, 1993 at Keyes Manage- 
ment, Inc. , 130 South Church Street, Asheboro, 
NC 27203. 

Jxeason for Proposed Action: 
21 NCAC 63 .0104 - To update information as 
specified in the law pertaining to the Board Mem- 
bership. 

21 NCAC 63 .0201 - To provide supervision by the 
qualified professional in the discipline of social 
work. 

21 NCAC 63 .0210 - To provide requirements for 
applicants seeking provisional certificates. 
21 NCAC 63 .0306 - To increase examination fees 
to the maximum coverage due to increase in costs. 
21 NCAC 63 .0401 - To provide additional contin- 
uing education requirements as related to ethics. 
21 NCAC 63 .0501 - To provide written confirma- 
tion from approved applicants to their acceptance 
of the Board's Ethical Standards for Practice. 

(comment Procedures: Persons wishing to present 
oral data, views or arguments on a proposed rule 
may file a notice with the Board at least 10 days 
prior to the public hearing at which the person 
wishes to speak. Comments should be limited to 
five minutes. The address of the Board is P. O. 
Box 1043, Asheboro, NC 27204. Written com- 
ments or arguments must be received by the Board 
no later than July 2, 1993. 

CHAPTER 63 - CERTIFICATION BOARD 
FOR SOCIAL WORK 

SECTION .0100 - GENERAL 

.0104 ORGANIZATION OF THE BOARD 

The — North — Carolina — Certification — Board — fef 
Social Work is compo s ed by law of seven mem 
bcrs appointed by the governor to staggered terms 
of three years. The composition of the board 3hall 
include four certified social workers (two certified 
social workers and two certified clinical social 
workers). Among the social workers, one member 
shall be employed in the field of social — work 
education, one member from the private sector and 



one member from the public sector. — The three 
remaining members shall be from the general 
public. The composition of the Board shall be in 
accordance with G.S. 90B-5. The Board shall 
elect a chairperson, vice chairperson and 
secretary-treasurer from its membership to serve 
for a term of at least one year. The Board shall 
hold at least eight meetings each year and four 
members shall at all times constitute a quorum. 
Members of the Board are expected to attend all 
meetings. 

Statutory Authority G.S. 90B-7. 

SECTION .0200 - CERTIFICATION 

.0201 DEFINITIONS 

The following definitions apply to the levels of 
certification in this Section: 

(1) Related human services fields shall in- 
clude psychology, sociology, counseling, 
rehabilitation, criminal justice, public 
policy, public administration, and human 
resources. The Board may, within its 
discretion, consider other fields not spe- 
cifically set out in this Subparagraph. 

(2) Two years of experience shall mean 
3,000 clock hours of work or employ- 
ment for a fee or salary while engaged in 
the practice of social work functions. 
(1500 hours of work for a fee or salary 
per 12 month period.) Practicum or 
internship experience taken as part of an 
educational program are not included. 

(3) Appropriate supervision (clinical) shall 
mean post-master's or post-doctoral 
experience directly supervised by a quali 
fied social worker, psychiatrist, or clini 
cal psychologist certified clinical social 
worker defined in this Act . The social 
work supervisor should have had at least 
two years of social work clinical experi- 
ence after completion of the master's or 
doctorate in social work and be eligible 
for certification as a clinical social work- 
er under the Act. The psychologist and 
p s ychiatrist should be licensed and appro 
priately board certified by the respectiv e 
di s cipline. A minimum of 100 hours of 
group or individual supervision is re- 
quired. 75 of the 100 hours must be 
individual supervision. Individuals ccrti 
fied through the Academy of Certified 
Social Workers, the National Federation 
of Health — Care — Providers — m — Clinical 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



429 



PROPOSED RULES 



Social Work, — Inc., or the Register of 
Clinical Social Workers already meet the 
supervision requirement. 

(4) Clinical setting shall mean any school, 
hospital, community mental health center, 
university counseling center, family or 
social services agency, or supervised 
independent practice. Such settings may 
be under public or private auspices and 
provide psychotherapeutic or social inter- 
vention for psychosocial problems of 
individuals, couples, families or groups. 

(5) Administrative setting shall mean any 
setting where the delivery of social work 
services are directed, supervised, planned 
and/or coordinated. Activities include, 
but are not necessarily limited to, policy 
development and implementation, man- 
agement, program evaluation, planning 
and staff development. 

(6) Appropriate supervision and training 
(manager) shall mean course work or 
workshops in organizational and commu- 
nity services and/or two years (3.000 
hours) of paid employment under super- 
vision in an administrative setting. 

Statutory Authority G.S. 90B-3; 90B-5; 90B-6. 

.0210 PROVISIONAL CERTIFICATES 

(a) The Board shall issue a provisional certifi- 
cate pursuant to G.S. 90B-7(f). 

(b) Applications and forms are to be obtained 
and returned to the North Carolina Board for 
Social Work. 



(c) An application fee of fifty dollars ($50.00) 
will be assessed for processing each application. 

(d) All provisional applicants who have not met 
requirements for two years supervised clinical 
experience shall receive on-going supervision until 
this requirement is satisfied. 

(e) The provisional certificate shall be renewed 
every six months by submission to the Board of 
the appropriately completed renewal and supervi- 
sion form and a fee of twelve dollars and fifty 
cents ($12.50) 30 days prior to the renewal date. 

Statutory- Authority G.S. 90B-7. 

SECTION .0300 - EXAMINATIONS 

.0306 EXAMLNATION FEES 

(a) An additional examination fee of one hun- 
dred dollars ($100.00) will be assessed for admin- 
istration and processing of the any written exami- 



nation. An unsuccessful applicant shall be as 
sessed a fee of se venty five dollars ($75.00) in 
order to retake the examination. 

(b) An examination fee of fifty dollars ($50.00) 
will be assessed for the administration and process 
ing of a second written examination if an applicant 
seeks certification at two different levels. 

(b) (e) An applicant who fails to appear for an 
examination shall be assessed a fee of fifty dollars 
($50.00) one hundred dollars ($100.00) in order to 
take the examination at a later date. 

Statutory Authority G.S. 90B-6. 

SECTION .0400 - RENEWAL OF 
CERTIFICATION 

.0401 CONTINUING EDUCATION 

Continuing education for certification renewal is 
required to maintain professional knowledge and 
technical competency. Certification shall be 
afforded on a two year basis. However, certifica- 
tion shall expire on the second June 30 after 
certification has been issued. Renewal of certifica- 
tion shall be based on 40 hours of renewal credits 
within the two year cycle. However, if a certifica- 
tion is for less than a full two year period, then 
renewal shall be accorded based on 30 hours of 
renewal credits. One unit of credit is equal to one 
contact hour. One academic course semester hour 
credit shall be equivalent to 15 clock hours. 
Credit for auditing an academic course shall be for 
actual clock hours attended during which instruc- 
tion was given and shall not exceed the academic 
credit allowed. Continuing education activities 
may include: 

( 1 ) academic social work courses taken for 
credit or audit; 

(2) formal agency-based staff development, 
seminars, institutes, workshops, mini 
courses or conferences oriented to the 
enhancement of social work, practice, 
values, skills and knowledge; 

(3) cross-disciplinary offerings from medi- 
cine, law and the behavioral/social sci- 
ences or other disciplines, if such offer- 
ings are clearly related to the enhance- 
ment of social work practice, values, 
skills and knowledge; 

(4) self-directed learning projects with prior 
approval by the Board. The maximum 
number for projects is 20 clock hours. A 
renewal unit shall not be granted for 
identical programs completed within the 
same certification renewal period, job 



430 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



PROPOSED RULES 



orientation or on the job trainingT j and 
(5) during each renewal period all certified 
social workers shall engage in a mini- 
mum of two-hours of continuing educa- 
tion focused on ethics. 

Statutory Authority G.S. 90B-6; 90B-9. 

SECTION .0500 - ETHICAL GUIDELINES 

.0501 INTRODUCTION 

A certified social worker shall promote profes- 
sional policies and practices which enhance the 
delivery of social work services. Upon approval 
of certification, each applicant shall review the 
Ethical Standards and return a signed statement to 
the Board agreeing to abide by these standards. 

Statutory Authority G.S. 90B-2. 



8:5 NORTH CAROLINA REGISTER June 1, 1993 431 



LIST OF RULES CODIFIED 



1 he List of Rules 


Codified 


is a listing of rules that were filed with OAH in the month indicated. 


Key- 








Citation 




= 


Title. Chapter, Subchapter and Rule(s) 


AD 




= 


Adopt 


AM 




= 


Amend 


RP 




= 


Repeal 


With Chgs 




= 


Final text differs from proposed text 


Corr 




= 


Typographical errors or changes that requires no rulemaking 


Eff. Date 




= 


Date rule becomes effective 


Temp. Expires 




Rule was filed as a temporary rule and expires on this date or 180 days 



I 



NORTH CAROLINA ADMINISTRATIVE CODE 



APRIL 93 



TITLE 



DEPARTMENT 



TITLE 



DEPARTMENT 



1 


Administration 


12 


Justice 


3 


State Auditor 


15A 


Environment, Health, 


4 


Economic and Community 




and Natural Resources 




Development 


20 


State Treasurer 


10 


Human Resources 


21 


Occupational Licensing Boards 


11 


Insurance 




32 - Medical Examiners 
34 - Mortuary Science 



I 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


1 NCAC 25 .0108 




/ 




/ 




05/03/93 




.0209 - 


.0210 




/ 




/ 




05/03/93 




.0211 




/ 








05/03/93 




.0213 




/ 




/ 




05/03/93 




.0302 




/ 




/ 




05/03/93 




.0401 




/ 




/ 




05/03/93 




.0503 - 


.0504 




/ 








05/03/93 




.0505 - 


.0506 




/ 




/ 




05/03/93 




.0603 




/ 




/ 




05/03/93 




.0605 




/ 




/ 




05/03/93 




.0701 - 


.0703 




/ 




/ 




05/03/93 




.0801 




/ 








05/03/93 







♦ 



432 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


1 NCAC 25 .0802 




/ 




/ 




05/03/93 




.0901 


/ 










05/03/93 




3 NCAC 3 
transferred and recodified to 
20 NCAC 2N 












05/01/93 




4 NCAC 3F .0403 
renumbered to .0402 










/ 






5A .0101 




/ 








05/03/93 




.0106 




/ 








05/03/93 




5B .0101 - .0103 




/ 




/ 




05/03/93 




.0105 




/ 




/ 




05/03/93 




5C .0101 




/ 








05/03/93 




.0103 




/ 




/ 




05/03/93 




.0201 




/ 




/ 




05/03/93 




.0301 




/ 








05/03/93 




.0303 




/ 




/ 




05/03/93 




5D .0101 




/ 




/ 




05/03/93 




.0107 


/ 










05/03/93 




.0201 - .0202 




/ 




/ 




05/03/93 




.0203 




/ 








05/03/93 




.0204 






/ 






05/03/93 




16G .0311 




/ 








05/03/93 




10 NCAC ID .0107 


/ 










05/01/93 




1M .0001 


/ 










05/01/93 




.0002 - .0003 


/ 






/ 




05/01/93 




.0004 - .0008 


/ 










05/01/93 




3C .2020 - .2021 


/ 






/ 




05/01/93 




.2022 - .2023 


/ 










05/01/93 




.2024 


/ 






/ 




05/01/93 




.2025 - .2026 


/ 










05/01/93 




.2027 - .2030 


/ 






/ 




05/01/93 




.2033 


/ 






/ 




05/01/93 




3H .1150-. 1151 


/ 






/ 




05/01/93 




.1152 - .1153 


/ 










05/01/93 







8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



433 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


10 NCAC 3H .1154 


/ 






/ 




05/01/93 




.1155 - .1156 


/ 










05/01/93 




.1157 - .1160 


/ 






/ 




05/01/93 




.1163 


/ 






/ 




05/01/93 




.1204 




/ 








05/01/93 




3J .3302 




/ 








06/01/93 




.3420 




/ 








06/01/93 




.3425 




/ 








06/01/93 




3L .0903 




/ 








05/01/93 




.1110 




/ 




/ 




07/01/93 




.1202 




/ 








05/01/93 




41E .0504 




/ 




/ 




07/01/93 




.0506 




/ 








07/01/93 




.0511 




/ 








07/01/93 




.0603 




/ 








07/01/93 




41G .0507 




/ 








07/01/93 




.0705 




/ 




/ 




07/01/93 




.0707 




/ 




/ 




07/01/93 




411 .0102 - .0103 




/ 




/ 




07/01/93 




.0201 - .0202 






/ 






07/01/93 




.0204 






/ 






07/01/93 




.0303 




/ 




/ 




07/01/93 




.0304 




/ 








07/01/93 




.0305 




/ 




/ 




07/01/93 




.0306 - .0307 




/ 








07/01/93 




.0308 




/ 




/ 




07/01/93 




.0401 - .0402 




/ 








07/01/93 




.0409 - .0410 




/ 








07/01/93 




11 NCAC 4 .0428 






/ 






05/03/93 




1 IB .0607 




/ 




/ 




05/01/93 




.0610 




/ 




/ 




05/01/93 




16 .0301 - .0303 


/ 






/ 




05/03/93 




12 NCAC 7D .0906 


/ 






/ 




05/03/93 







434 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


12 NCAC 11 .0203 










/ 






15A NCAC 2H .0105 










/ 






.0107 










/ 






7H .1205 




/ 








04/23/93 




7K .0203 




/ 








05/03/93 




10D .0003 










/ 






18A .2537 




/ 








05/01/93 


180 DAYS 


18D .0201 




/ 








05/03/93 




.0206 




/ 








05/03/93 




20D .0234 




/ 




/ 




05/01/93 




20 NCAC 2N 
transferred and recodified from 
3 NCAC 3 












05/01/93 




21 NCAC 32H .0400 










/ 






34A .0102 




/ 








05/0193 




.0201 




/ 








05/01/93 




34D .0102 - .0103 


/ 










05/01/93 




.0201 


/ 






/ 




05/01/93 




.0301 - .0302 


/ 






/ 




05/01/93 




.0303 - .0304 


/ 










05/01/93 




.0401 - .0402 


/ 










05/01/93 




.0403 


/ 






/ 




05/01/93 




.0404 


/ 










05/01/93 





8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



435 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 
Environmental Policy Act 

1 NCAC 25 .0213 - Environmental Policy Act Advisory Committee 
Agency Revised Rule 

1 NCAC 25 .0401 - Method of Compliance 
Agency Revised Rule 

1 NCAC 25 .0506 - Review Process- 
Agency Revised Rule 

1 NCAC 25 .0603 - Format and Content 
Agency Revised Rule 

COMMERCE 

Banking Commission 

4 NCAC 3F .0402 - Required and Permissible Investments 

Agency Withdrew Rule 
Cemetery Commission 

4 NCAC 5 B .0103 - Hearings 

Agency Revised Rule 
4 NCAC 5D .0101 - Report 

Agency Revised Rule 
4 NCAC 5D .0201 - Report 

Agency Revised Rule 
4 NCAC 5D .0202 - Delivery 

Agency Revised Rule 

Savings Institutions Division: Savings Institutions Commission 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



RRC Objection 01/21/93 

Obj. Cont'd 02/18/93 

03/19/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



4 NCAC 16A .0105 - Restrictions: Payment of Dividends & Repurchase of Stock RRC Objection 03/18/93 



Agency Revised Rule 
4 NCAC 16G .0311 - Required Provisions in Plan of Conversion 
Agency Revised Rule 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Obj. Removed 03/18/93 

RRC Objection 03/18/93 

RRC Objection 03/18/93 

Obj. Removed 04/15/93 



Adult Health 



15 A NCAC 16A . 1208 - Use of Program Funds 
Agency Revised Rule 



RRC Objection 03/18/93 
Obj. Removed 03/18/93 



436 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



RRC OBJECTIONS 



Coastal Management 

15 A NCAC 7H .0308 - Specific Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 

15 A NCAC 7H .1205 - Specific Conditions 
Rule Returned to Agency 

Environmental Health 

15 A NCAC 18A .1948 - Site Classification 
Agency Revised Rule 

Environmental Management 

15 A NCAC 2H .1103 - Definitions 

Agency Revised Rule 
15A NCAC 2H .1110 - Implementation 

Agency Responded 

Laboratory Services 

15A NCAC20D .0234 - Criteria & Procedures: Decert. /Denial/Downgrading 
Agency Revised Rule 

Solid Waste Management 

15 A NCAC 13A .0013 - The Hazardous Waste Permit Program - Part 270 
Agency Revised Rule 

Wildlife Resources and Water Safety 



RRC Objection 11/19/92 
12/17/92 

RRC Objection 01/21/93 

02/18/93 

Eff. 03/01/93 

RRC Objection 03/18/93 
04/15/93 



RRC Objection 03/18/93 
Obj. Removed 03/18/93 



RRC Objection 02/18/93 

Obj. Removed 03/18/93 

RRC Objection 02/18/93 

Obj. Cont'd 03/18/93 



RRC Objection 03/18/93 
Obj. Removed 04/15/93 



RRC Objection 03/18/93 
Obj. Removed 03/18/93 



15 A NCAC 101 .0001 - Definitions 
Agency Responded 
Agency Responded 
Rule Returned to Agency 



RRC Objection 10/15/92 

Obj. Cont'd 11/19/92 

Obj. Cont'd 12/17/92 

01/21/93 



HUMAN RESOURCES 

Children's Services 

10 NCAC 41 E .0514 - Child Care & Development: Health 
10 NCAC 41 G .0705 - Medical Program 

Agency Revised Rule 
10 NCAC 41 Q .0201 - Personnel 



RRC Objection 04/15/93 

RRC Objection 04/15/93 

Obj. Removed 04/15/93 

RRC Objection 04/15/93 



Departmental Rules 



10 NCAC 1M .0002 - Complaints 

Agency Revised Rule 
10 NCAC 1M .0003 - Investigation 

Agency Revised Rule 



RRC Objection 04/15/93 

Obj. Removed 04/15/93 

RRC Objection 04/15/93 

Obj. Removed 04/15/93 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



437 



RRC OBJECTIONS 



Facility Services 



10 NCAC 3C .2020 

Agency Revised 
10 NCAC 3C .2021 

Agency Revised 
10 NCAC 3C .2030 

Agency Revised 
10 NCAC 3C .2033 

Agency Revised 
10 NCAC 3H .1150 

Agency Revised 
10 NCAC 3H .1151 

Agency Revised 
10 NCAC 3H .1160 

Agency Revised 
10 NCAC 3H .1163 

Agency Revised 



- Definitions RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physician Reqs /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physical Facility Reqs /Inpatient Rehab Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Deemed Status /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Definitions RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physician Reqs /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physical Facility Reqs /Inpatient Rehab Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Deemed Status /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 



Medical Assistance 



10 NCAC 50B .0203 - Application Processing Standards 
Agency Revised Rule 



RRC Objection 03/18/93 
Obj. Removed 03/18/93 



INDEPENDENT AGENCIES 



N.C. Housing Finance Agency 



24 NCAC 1M .0202 - Eligibility 
No Response from Agency 
No Response from Agency 
Agency Revised Rule 

24 NCAC 1M .0204 - Selection Procedures 
No Response from Agency- 
No Response from Agency 
Agency Revised Rule 

24 NCAC 1M .0205 - Administration 
No Response from Agency 
No Response from Agency 
Agency Repealed Rule 

24 NCAC 1M .0206 - Program Fees 
No Response from Agency 
No Response from Agency 
Agency Withdrew Rule 

24 NCAC 1M .0301 - Goal and Objectives 
No Response from Agency- 
No Response from Agency 
Agency Revised Rule 

24 NCAC 1M .0302 - Eligibility Requirements 
No Response from Agency- 
No Response from Agency- 
Agency Revised Rule 



RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 

RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 



10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 



438 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



RRC OBJECTIONS 



24 NCAC 1M .0303 - Threshold Review Criteria 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0306 - Funding Commitment 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0401 - Goals and Objectives 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0402 - Eligibility Requirements 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0403 - Threshold Review Criteria 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0404 - Ranking Criteria 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0405 - Agency Board Approval 

No Response from Agency- 
No Response from Agency- 
Agency Revised Rule 



RRC 


Objection 


10/15/92 


Obf 


Cont 'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obf 


Removed 


01/21/93 


RRC 


Objection 


10/15/92 


Obj. 


Cont'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


' Objection 


10/15/92 


Obj. 


Cont'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


Objection 


10/15/92 


Obj. 


Cont 'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC Objection 


10/15/92 


Obj. 


Cont 'd 


11/19/92 


Obj. 


Cont'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


' Objection 


10/15/92 


Obj. 


Cont 'd 


11/19/92 


Obj. 


Cont'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


Objection 


10/15/92 


Obj. 


Cont'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obj. 


Removed 


01/21/93 



INSURANCE 



Actuarial Services 



11 NCAC 16 .0303 - Annual Filing 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 



Consumer Services 



11 NCAC 4 .0428 - Enforcement 
Agency Revised Rule 
Agency Repealed Rule 



RRC Objection 03/18/93 
RRC Objection 03/18/93 
Obj. Removed 04/15/93 



Financial Evaluation Division 



11 NCAC 11 A .0602 - Licensure 
Agency Revised Rule 
Rule Returned to Agency- 
Agency Filed Rule for Codification Over RRC Objection 

11 NCAC 1 IB .0508 - Foreign Company Securities: Verifiable Capital/Surplus 

Agency Revised Rule 
11 NCAC 11B .0607 - Application - Employers 

Agency Revised Rule 



RRC Objection 


11/19/92 


RRC Objection 


11/19/92 




12/17/92 


Eff. 


12/29/92 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 


RRC Objection 


03/18/93 


Obj. Removed 


04/15/93 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



439 



RRC OBJECTIONS 



11 NCAC 11B .0608 - Deposits: Bonds: Excess Insurance - Employers 

Agency Revised Rule 
11 NCAC 1 IB .0610 - Application - Groups 

Agency Revised Rule 
11 NCAC 11H .0002 - License - Steps 

Agency Revised Rule 

JUSTICE 

Private Protective Services 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/18/93 
03/18/93 
03/18/93 
04/15/93 
03/18/93 
03/18/93 



12 NCAC 7D .0205 - Corporate Business License 

Agency Revised Rule 
12 NCAC 7D .0809 - Authorized Firearms 



RRC Objection 02/18/93 
Obj. Removed 03/18/93 
RRC Objection 04/15/93 



LICENSING BOARDS AND COMMISSIONS 



Electrical Contractors 



21 NCAC 18B .0703 - Reciprocity: Virginia 
Rule Returned to Agency - Improper Notice 



RRC Objection 
Obj. Cont'd 



02/18/93 
02/18/93 



Medical Examiners 



21 NCAC32A .0001 

Rule Returned to 
21 NCAC 32B .0101 

Rule Returned to 
21 NCAC 32B .0209 

Rule Returned to 
21 NCAC 32B .0210 

Rule Returned to 
21 NCAC32B .0211 

Rule Returned to 
21 NCAC 32B .0212 

Rule Returned to 
21 NCAC 32B .0213 

Rule Returned to 
21 NCAC32B .0214 

Rule Returned to 
21 NCAC 32B .0215 

Rule Returned to 
21 NCAC 32B .0305 

Rule Returned to 
21 NCAC 32B .0309 

Rule Returned to 
21 NCAC 32B .0314 

Rule Returned to 
21 NCAC 32B .0315 

Rule Returned to 
21 NCAC 32C .0003 

Rule Returned to 



- Location 

Agency - Improper Notice 

- Definitions 

Agency - Improper Notice 

- Fee 

Agency - Improper Notice 

- Deadline 

Agency - Improper Notice 

- Passing Score 
Agency - Improper Notice 

- Time and Location 
Agency - Improper Notice 

- Graduate Medical Ed & Training for Licensure 
Agency - Improper Notice 

- Personal Interview 
Agency - Improper Notice 

- Examination Combinations 
Agency - Improper Notice 

- Examination Basis for Endorsement 
Agency - Improper Notice 

- Personal Interview 
Agency - Improper Notice 

- Passing Flex Score 
Agency - Improper Notice 

- Ten Year Qualification 
Agency - Improper Notice 

- Prerequisites for Incorporation 
Agency - Improper Notice 



RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 



02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 



440 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



RRC OBJECTIONS 



21 NCAC 32C .0006 - Charter Amendments and Stock Transfers 

Rule Returned to Agency - Improper Notice 
21 NCAC 32H .0102 - Definitions 

Agency Revised Rule 
21 NCAC 32H .0901 - Conditions 

Agency Revised Rule 



RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



02/18/93 
02/18/93 
03/18/93 
03/18/93 
03/18/93 
03/18/93 



Optometry 

21 NCAC 42 B .0302 - Continuing Education RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 

21 NCAC 42E .0203 - Consultant: Advisor, Staff Optometrist I Ind Contractor RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 

21 NCAC 42L .0005 - Written Answers to the Notice of Hearing RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 

21 NCAC 42M .0006 - Termination RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 

REVENUE 

Individual Income Tax Division 



17 NCAC 6B . 0107 - Extensions 

Agency Revised Rule 
17 NCAC 6B .0115 - Additions to Federal Taxable Income 

Agency Revised Rule 
17 NCAC 6B .0116 - Deductions from Federal Taxable Income 

Agency Revised Rule 
1 7 NCA C 6B .0117 - Transitional Adjustments 

Agency Revised Rule 
17 NCAC 6B .3406 - Refunds 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



08/20/92 
09/17/92 
08/20/92 
09/17/92 
08/20/92 
09/17/92 
08/20/92 
09/17/92 
08/20/92 
09/17/92 



STATE PERSONNEL 



Office of State Personnel 



25 NCAC ID .0511 - Reduction in Force Priority Consideration 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



03/18/93 
03/18/93 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



441 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 

Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5 A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATDZNT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones. Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services. Licensure Section, Respondent (92 DHR 1192). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton. Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied \n ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment . 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief. Communicable Disease Control Section of the North Carolina Department of Environment , Health, and 
Natural Resources, Wayne Bobbin Jr. . as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



442 8:5 NORTH CAROLINA REGISTER June 1, 1993 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 



McLaurin Parking Co. v. Administration 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



92 DOA 1662 Morrison 04/02/93 



8:3 NCR 320 



Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 
Alcoholic Beverage Control Comm. v. Gary Morgan Neugent 
Alcoholic Beverage Control Comm. v. Kirby Ronald Eldridge 
Alcoholic Beverage Control Comm. v. Larry Isacc Hailstock 
Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr. 
Alcoholic Bev. Control Comm. v. Mild & Wild, Inc., Sheila Seholz 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1153 


Chess 


04/26/93 


92 ABC 1483 


Reilly 


04/07/93 


93 ABC 0125 


Reilly 


05/13/93 


93 ABC 1475 


Nesnow 


03/23/93 



COMMERCE 



Lester Moore v. Weatherization Assistance Program 
CRIME CONTROL AND PUBLIC SAFETY 



93 COM 0105 Gray 



03/08/93 



George W. Pay lor v. Crime Victims Compensation Comm. 
Anthony L, Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control & Public Safety 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 

ENVIRONMENT. HEALTH, AND NATURAL RESOURCES 



91 CPS 1286 


Morgan 


04/27/93 


92 CPS 0937 


Chess 


03/01/93 


92 CPS 1195 


Reilly 


03/19/93 


92 CPS 1787 


Reilly 


03/26/93 


93 CPS 0034 


Gray 


05/05/93 


93 CPS 0152 


Nesnow 


04/02/93 



8:3 NCR 327 



Charles L. Wilson v. Environment, Health, & Natural Resources 
Utley C. Stallings v. Environment, Health, & Natural Resources 
Safeway Removal, Inc. v. Environment, Health, &. Natural Res. 
Elizabeth City/Pasquotank Cty Mun Airport Auth v. EHNR 
City of Salisbury v. Environment, Health, & Natural Resources 
Willie M. Watford v. Hertford Gates District Health Department 
Angela Power, Albert Power v. Children's Special Health Svcs. 
Mustafa E. Essa v. Environment, Health, &. Natural Resources 



91 EHR 0664 


Morgan 


03/23/93 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 1140 


Gray 


04/13/93 


92 EHR 1472 


Morrison 


04/22/93 


92 EHR 1600 


Chess 


03/24/93 


93 EHR 0008 


Becton 


03/24/93 


93 EHR 0146 


Gray 


03/29/93 



8:1 NCR 83 



HUMAN RESOURCES 



O.C. Williams v. Human Resources 
Ronald Terry Brown v. Human Resources 
O.C. Williams v. Human Resources 
Michael L. Ray v. Human Resources 
Randy Chambliss v. Human Resources 
Melvin White v. Human Resources 
Jefferson D. Boylen v. Human Resources 
Jeffery D. Williams v. Human Resources 
Samuel E. Massenberg Jr. v. Human Resources 
William A. Dixon v. Human Resources 



91 CSE 0036* 2 


Morgan 


03/30/93 


91 CSE 0249 


Morgan 


05/17/93 


91 CSE 1158* ! 


Morgan 


03/30/93 


91 CSE 1173 


Morgan 


05/17/93 


91 CSE 1187 


Morgan 


04/28/93 


91 CSE 1192 


Morgan 


05/17/93 


91 CSE 1217 


Morgan 


05/17/93 


91 CSE 1231 


Morgan 


04/28/93 


91 CSE 1249 


Morgan 


05/17/93 


91 CSE 1277 


Morrison 


03/04/93 



Consolidated cases. 



8:5 



NORTH CAROLINA REGISTER 



June I, 1993 



443 



CONTESTED CASE DECISIONS 



\<;i;n( y 



Gregory L. Washington v. Human Resources 

Edwin Clarke v. Human Resources 

Dwayne Allen v. Human Resources 

Edwin Ivester v. Human Resources 

Edward E. Brandon v. Human Resources 

Darrell W. Russell v. Human Resources 

Michelle D. Mobley v. Human Resources 

Robert E. Watson v. Human Resources 

Byron Christopher Williams v. Human Resources 

James W. Bell v. Human Resources 

Eric Stanley Stokes v. Human Resources 

David Rollins v. Human Resources 

Lyndell Greene v. Human Resources 

Leroy Snuggs v. Human Resources 

James P. Miller III v. Human Resources 

Larry L. Crowder v. Human Resources 

Carlos Bernard Davis v. Human Resources 

Timothy Brian Eller v. Human Resources 

Charles S. Ferrer v. Human Resources 

Ronald H. Lockley v. Human Resources 

Rene Thomas Rittenhouse v. Human Resources 

Thomas Edward Williamson v. Human Resources 

Roy Chester Robinson v. Human Resources 

William E. Ingram v, Human Resources 

Dale Robert Stuhre v. Human Resources 

Tommy Malone v. Human Resources 

James C. Dixon Jr. v. Human Resources 

Wallace M. Cooper v. Human Resources 

Jarvis N. Price v. Human Resources 

Thomas L. Yates v. Human Resources 

Robert E. Tarlton Sr. v. Human Resources 

Rodney Devard demons v. Human Resources 

James A. Coleman v. Human Resources 

Romeo F. Skapple v. Human Resources 

Jeffrey L. Garrett v. Human Resources 

William C. Hubbard v. Human Resources 

Edward Fitch v. Human Resources 

Brian C. Gilmore v. Human Resources 

Johnny W. Cooke v. Human Resources 

Isaac Maxwell v. Human Resources 

Billy Smith v. Human Resources 

Anthony Curry v. Human Resources 

Larry W. Golden v. Human Resources 

Eric Stanley Stokes v. Human Resources 

James E. Blakney v. Human Resources 

Barbara W. Catlett v, Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Leon Barbee v. Human Resources 

James H. Hunt Jr. v. Div. of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Helm's Rest Home, Ron J. SchimptVEdith H. Wilson v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0129 


Morgan 


05/17/93 


92 CSE 0196 


Morgan 


03/31/93 


92 CSE 0268 


Nesnow 


03/30/93 


92 CSE 


1237 


Gray 


04/16/93 


92 CSE 


1249 


Becton 


04/20/93 


92 CSE 


1256 


Nesnow 


04/15/93 


92 CSE 


1265 


Reilly 


05/06/93 


92 CSE 


1270 


Nesnow 


04/26/93 


92 CSE 


1311 


Nesnow 


05/10/93 


92 CSE 


1316*' 


Reilly 


03/25/93 


92 CSE 


1334 


Morrison 


05/06/93 


92 CSE 


1346 


Nesnow 


04/16/93 


92 CSE 


1360 


Morrison 


04/15/93 


92 CSE 


1361 


Gray 


04/16/93 


92 CSE 


1396 


Reilly 


04/15/93 


92 CSE 


1404 


Reilly 


04/15/93 


92 CSE 


1414 


Reilly 


04/20/93 


92 CSE 


1416 


Mann 


04/15/93 


92 CSE 


1418 


Nesnow 


04/20/93 


92 CSE 


1421 


Nesnow 


04/20/93 


92 CSE 


1422 


Reilly 


04/20/93 


92 CSE 


1423 


Reilly 


04/15/93 


92 CSE 


1450 


Reilly 


04/15/93 


92 CSE 


1516 


Reilly 


05/11/93 


92 CSE 


1520 


Mann 


05/07/93 


92 CSE 


1522 


Becton 


05/11/93 


92 CSE 


1527 


Reilly 


05/11/93 


92 CSE 


1531 


Morrison 


05/12/93 


92 CSE 


1535 


Gray 


05/10/93 


92 CSE 


1536 


Gray 


05/17/93 


92 CSE 


1539 


Gray 


05/10/93 


92 CSE 


1540 


Reilly 


05/11/93 


92 CSE 


1545 


Gray 


04/26/93 


92 CSE 


1557 


Gray 


04/22/93 


92 CSE 


1562 


Mann 


05/12/93 


92 CSE 


1572 


Reilly 


05/11/93 


92 CSE 


1576 


Gray 


04/26/93 


92 CSE 


1585 


Becton 


05/11/93 


92 CSE 


1589 


Reilly 


04/26/93 


92 CSE 


1629 


Reilly 


03/25/93 


92 CSE 


1631 


Reilly 


03/25/93 


92 CSE 


1633 


Reilly 


03/25/93 


92 CSE 


1652*' 


Reilly 


03/25/93 


92 CSE 


1779 


Nesnow 


05/13/93 


92 DCS 0577 


West 


03/15/93 


92 DCS 


1181 


Gray 


05/04/93 


92 DCS 


1200 


Gray 


03/29/93 


92 DCS 


1271 


Reilly 


05/05/93 


92 DHR 0658 


Morrison 


04/30/93 


92 DHR 


1145 


Becton 


05/13/93 


92 DHR 


1192 


Nesnow 


04/02/93 


92 DHR 


1275 


Gray 


03/15/93 


92 DHR 


1604 


Reilly 


05/10/93 


92 DHR 


1612 


Chess 


03/08/93 


92 DHR 


1613 


Chess 


03/08/93 


92 DHR 


1614 


Chess 


03/09/93 


93 DHR 0010 


Becton 


03/11/93 



PUBLISHED DECISION 
REGISTER CITATION 



I 



♦ 



8:5 NCR 447 



3:4 NCR 392 
3:5 NCR 449 
3:3 NCR 313 



INSURANCE 



Carolyn M. Hair v. St Employees Comprehensive Major Medical 



92 INS 1464 



Che 



03/10/93 



I 



444 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OK 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



JUSTICE 

Colin Carlisle Mayers v. Sheriffs' Ed. & Training Slds. Comm. 
Marilyn Jean Britt v. Criminal Justice Ed. &. Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm. 
Sherri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm. 
Mark Thomas v. Sheriffs' Ed. & Training Standards Commission 

LABOR 

Greensboro Golf Center, Inc. v. Labor 



92 DOJ 0761 


Morrison 


05/10/93 


92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1756 


Gray 


03/23/93 


93 DOJ 0151 


West 


04/21/93 



92 DOL 0204 



Nesnow 



04/15/93 



MORTUARY SCIENCE 



Board of Mortuary Science v. Triangle Funeral Chapel, Inc. 

STATE PERSONNEL 

Frances K. Pate v. Transportation 

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel V. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Brenda G. Mitchell v. Correction 
Clayton Brewer v. North Carolina State University 
Sherman Daye v. Transportation 
Donnie M. White v. Correction 

Renee E. Shepherd v. Winston-Salem State University 
Willie Granville Bailey v. Winston-Salem State University 
Julia Spinks v. Environment, Health, &. Natural Resources 
James B. Price v. Transportation 
I. Cary Nailiing v. UNC-CH 
Deborah Barber v. Correction 
Laverne B. Hill v. Transportation 
Jimmy D. Wilkins v. Transportation 
Herman James Goldstein v. UNC-Chapel Hill et al. 
Glinda C. Smith v. Wildlife Resources Commission 
William Kenneth Smith Jr. v. Broughton Hospital (Human Resources) 
Larry O. Nobles v. Human Resources 
Willie Thomas Hope v. Transportation 
Suzanne Ransley Hill v. Environment, Health, &. Nat. Res. 
Herman James Goldstein v. UNC-Chapel Hill et al. 
John B. Sauls v. Wake County Health Department 
Gilbert Jaeger v. Wake County Alcoholism Treatment Center 
Joseph Henry Bishop v. Environment, Health, & Natural Res. 
Brenda K. Campbell v. Employment Security Commission 
James B. Price v. Transportation 
Betty Bradsherv. UNC-CH 
Jama! Al Bakkat-Morris v. Glenn Sexton (DSS) 
Brenda Kay Barnes v. Human Resources 
Larry G. Riddle v. Correction, Division of Prisons 
Stevie E. Dunn v. Polk Youth Center 
Barbara A. Johnson v. Human Resources 
Carrie P. Smith v. County of Stanly 

George W. Allen v. Human Resources, Correction, Agri & EHNR 
William G. Fisher v. St Bd of Ed, Albermarle City Schools & Bd of Ed 
Clifton E. Simmons v. Correction 

Irving S. Rodgers v. C.A. Dillon, Division of Youth Services 
Jerry D. Doss Sr. v. Correction 



92 BMS 1169 



Reilly 



04/29/93 



8:4 NCR 396 



88 OSP 0340 


Morrison 


05/03/93 




90 OSP 1064* 1 


Mann 


05/04/93 




90 OSP 1065*" 


Mann 


05/04/93 




90 OSP 1066* 4 


Mann 


05/04/93 




90 OSP 1067** 


Mann 


05/04/93 




90 OSP 1068* 4 


Mann 


05/04/93 




91 OSP 0625 


West 


03/08/93 


8:1 NCR 75 


91 OSP 0941 


West 


04/02/93 


8:3 NCR 306 


91 OSP 0951 


West 


05/07/93 




91 OSP 1236 


Morgan 


04/05/93 




91 OSP 1391 


Morgan 


04/28/93 




92 OSP 0285 


Morrison 


03/10/93 




92 OSP 0313 


Becton 


04/12/93 


8:4 NCR 382 


92 OSP 0375 


Gray 


04/13/93 




92 OSP 0394 


Becton 


04/20/93 




92 OSP 0396 


Chess 


03/04/93 




92 OSP 043 1* 1 


West 


03/08/93 




92 OSP 0432* 1 


West 


03/08/93 




92 OSP 0634 


Morrison 


05/04/93 




92 OSP 0653 


Morrison 


03/12/93 




92 OSP 0684 


Becton 


05/10/93 




92 OSP 0732 


Mann 


04/23/93 




92 OSP 0947 


Morgan 


03/23/93 




92 OSP 0992 


Reilly 


03/18/93 


8:2 NCR 224 


92 OSP 1047 


Morrison 


05/04/93 




92 OSP 1142 


Reilly 


03/08/93 


8:1 NCR 88 


92 OSP 1204 


Reilly 


05/10/93 




92 OSP 1243 


Reilly 


03/05/93 




92 OSP 1505 


Morrison 


03/17/93 




92 OSP 1657 


Mann 


03/19/93 




92 OSP 1733 


Becton 


03/30/93 




92 OSP 1741 


Becton 


03/24/93 




92 OSP 1768 


Morrison 


03/17/93 




92 OSP 1774 


Gray 


04/26/93 




92 OSP 1789 


Becton 


04/19/93 




93 OSP 0103 


Morrison 


03/17/93 




93 OSP 0109 


Becton 


04/01/93 




93 OSP 0111 


Reilly 


04/16/93 




93 OSP 0134 


Becton 


04/20/93 




93 OSP 0159 


Morrison 


04/21/93 




93 OSP 0177 


West 


04/21/93 




93 OSP 0287 


Gray 


05/17/93 





8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



445 



CONTESTED CASE DECISIONS 



AGENCY 



STATE TREASURER 

Herman D. Brooks v. Bd of Trustees /Teachers' & St Emp Ret Sys 
Henrietta Sandlin v. Teachers' & State Emp Comp Major Medical Plan 
Mary Alyce Carmichacl v. Bd/Trustees/Teachers' & St Emp Ret Sys 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



♦ 



91 DST0566 


Gray 


04/13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 1506 


Chess 


04/08/93 



TRANSPORTATION 



Yates Construction Co., Inc. v. Transportation 



92 DOT 1800 Morgan 03/25/93 



♦ 



♦ 



446 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF MECKLENBURG 



EN THE OFFICE OF 
ADMINISTRATrVE HEARINGS 
92 DCS 1181 



LAUREL LANGFORD 
Petitioner. 



N.C. DEPARTMENT OF HUMAN RESOURCES, 
DrVISION OF SOCIAL SERVICES, OFFICE 
OF CHILD SUPPORT ENFORCEMENT 
Respondent. 



RECOMMENDED DECISION 



This matter was heard before Beecher R. Gray, Administrative Law Judge, on April 15, 1993, in 
Charlotte, North Carolina. 

APPEARANCES 

Petitioner: Douglas S. Sea, Attorney, Legal Services of Southern Piedmont, Inc., Charlotte, North 
Carolina. 

Respondent: T. Byron Smith, Assistant Attorney General, North Carolina Department of Justice, 
Raleigh, North Carolina. 

ISSUE 

Whether the respondent has properly distributed child support collected in this case in accordance with 
the provisions of the consent decree in Cassell y^ Flaherty , C-C-90-0010-M (W.D.N.C. September 3, 1991) 
(hereinafter, "the Consent Decree") and the Social Security Act, 42 U.S.C. §657. 

PROCEEDINGS 

This matter came on for hearing after Respondent's Motion for Summary Judgment had been denied. 
Petitioner's Cross Motion for Summary Judgment was still pending. The parties stipulated to the admission 
of additional documents at the hearing and that the matter could be decided without the presentation of 
additional testimony. 

The documents submitted by the parties and stipulations of counsel show the following: 

1. On February 6, 1992, Petitioner requested CASSELL RELIEF pursuant to f 18(d) of the 
Consent Decree. On August 1 1 , 1992, Respondent issued a notice concerning the results of the review stating 
that no additional support was due to Petitioner. When informal attempts to obtain additional information 
failed. Petitioner timely filed a petition in the Office of Administrative Hearings requesting review of 
Respondent's August 11, 1992 decision. 

2. In its Motion for Summary' Judgment. Respondent claimed that Petitioner had been overpaid 
$307 because she received distributions of current child support during months in which she received AFDC 
benefits. Respondent now concedes that this was incorrect and there was no such overpayment of support. 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



447 



CONTESTED CASE DECISIONS 



3. In 1987, absent parent Glenn Phillips became subject to a court order requiring that a total 

of $220 per month be withheld from his wages by his employer. Royal Insurance. Of this amount, $214 was 
required to be paid to current child support and $6.00 was to be paid to outstanding arrears. Respondent's 
distribution record shows that in some months, $220 was received by Respondent from the employer, but in 
other months, more than that amount (generally $330) was received, and in some months, less than $220 
(generally $1 10) was received. Respondent has never produced evidence of the actual dates that the employer 
withheld support from Mr. Phillip's wages or the amounts withheld on those dates. 

CONCLUSIONS OF LAW 

1 . The Consent Decree requires Respondent, in any income withholding case in which it is 
unable to determine in a timely manner the actual dates of withholding by an employer, to reconstruct the 
dates of the child support payments by applying any amounts received in a month in excess of the monthly 
support obligation to prior months in which less than the monthly support obligation was received. 

2. Paragraph 18(d) of the Consent Decree requires Respondent to reconstruct child support 
payments for all child support received and distributed by Respondent on or after January 1, 1989, even if 
the reconstruction requires that that support be applied to months prior to 1989, so long as a valid court order 
or administrative notice for income withholding was in effect in that month and less than the monthly support 
obligation in effect already had been applied by Respondent to that month. 

3. The decision of the North Carolina Court of Appeals in Sampson County Child Support 
Enforcement Agency \\ Bolton , 377 S.E. 2d 88 (NC App. 1989) has no application to this case because there 
is no evidence that Respondent instructed the employer to withhold more than the monthly support obligation 
of $220 in any month, or even that the employer did, in fact, withhold more than $220 in any month. 

RECOMMENDED DECISION 

Petitioner's Cross Motion for Summary Judgment is granted for the reasons set forth herein. The 
Department of Human Resources will make the final decision in this contested case. It is recommended that 
the Agency adopt the Conclusions of Law set forth above and comply with provisions of the Cassell v^ 
Flaherty Consent Decree by applying all support payments received on or after January 1, 1989 from Glenn 
Phillips' employer to the most recent previous months in which the amount required to be paid under the 
payment schedule had not already been applied. 

NOTICE 

Before the Agency makes the final decision, it is required by North Carolina General Statutes §150B- 
36(a) to give each party an opportunity to file Exceptions to this Recommended Decision, and to present 
written arguments to those in the Agency who will make the final decision. 

The Agency is required by North Carolina General Statutes §150B-36(b) to serve a copy of the final 
decision on all parties and to furnish a copy to the parties' Attorneys of Record and to the Office of 
Administrative Hearings. 

This the 30th day of April, 1993. 



By: 



Beecher R. Gray 
Administrative Law Judge 



448 8:5 NORTH CAROLINA REGISTER June 1, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF GUILFORD 



IN THE OFFICE OF 

ADMINISTRATTVE HEARINGS 

92DHR 1145 



JAMES H. HUNT JR. 
Petitioner, 



DPVISION OF MEDICAL ASSISTANCE, 
N.C. DEPARTMENT OF HUMAN RESOURCES. 
Respondent. 



RECOMMEND DECISION 



A Petition for a Contested Case Hearing was filed on behalf of the Petitioner in which it is alleged 
that the Petitioner needs private duty nursing services as defined by federal regulations and the State has 
denied the needed services by imposing a more stringent definition of private duty nursing by requiring that 
the services provided must be services that can only be performed by a licensed nurse. The State, while 
admitting that the Petitioner needs a great deal of individual and continuous attention, contends that the 
services required are not "substantial and complex continuous care" such as to require that they be performed 
by a licensed nurse. 

This matter was heard before Brenda B. Becton, Administrative Law Judge, on February 24, 1993, 
in High Point, North Carolina. At the conclusion of the hearing, the parties were afforded an opportunity to 
file written submissions. The record was closed on March 29, 1993. 

APPEARANCES 

Petitioner: Stanley B. Sprague, Attorney. Central 

Carolina Legal Services, Inc., Greensboro. North Carolina. 

Respondent: Claud R. Whitener, III, Associate Attorney 

General, N.C. Department of Justice, Raleigh, North Carolina. 

ISSUE 

Whether the Respondent properly denied the Petitioner's request for eight hours or more each day 
of continuous private duty nursing services under the Medicaid Program. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 

1. On June 3, 1992, the Petitioner's physician, Charles Brett, wrote Olivia Hill, Supervisor of Special 

Care Services for the Division of Medical Assistance, Department of Human Resources, requesting 
that the 18 year old Petitioner be given private duty nursing eight hours a day, seven days a week. 
The Petitioner was receiving only five, one-hour visits in his home, with his mother providing the 
rest of the care. 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



449 



CONTESTED CASE DECISIONS 



2. The Petitioner is a profoundly retarded male with the mentality of a two or three month old child. 
He is in a persistent vegetative state, and he cannot communicate with anyone or cooperate in any 
way in his own care. He also has a V/P shunt which transfers fluid from his brain to his stomach. 
He suffers from chronic bronchitis and other serious physical problems. 

3. For many years, the Petitioner has been dependent on oral suctioning for respiratory support. He is 
unable to swallow or cough to clear secretions, and if not suctioned, he will roll secretions around 
his mouth until he chokes, aspirates, or stops breathing. He also needs suctioning when he is 
nauseated or vomits. Three to five times each week, he holds his neck in a hyperextended position, 
which increases the chance that he will choke or aspirate. 

4. Since around November 17, 1992, the Petitioner has received oxygen by order of his attending 
physician, with up to two liters per minute administered into his nostrils. The Petitioner needs 
oxygen due to his mild respiratory distress and his substantial and continued cyanosis (i.e. his skin 
turns a bluish color due to insufficient oxygen). He does not have a tracheostomy. While the device 
that regulates the oxygen has a warning device that beeps when the patient is not receiving enough 
oxygen, the Petitioner jerks his head so much that it is not possible to keep the warning device fully 
operational all the time. Therefore, it is necessary that someone constantly be in the room with the 
Petitioner to check the oxygen machine. 

5. The Petitioner's lungs need constant analysis. All four lobes are constantly either congested, or 
produce rattling or loud rubbing sounds. His lung capacity has been declining, thereby reducing his 
ability to fight off infections. 

6. It is difficult to feed the Petitioner. The amount of food that he is given must be varied based on 
his condition, and must be limited when his secretions are high or when gastric irritation or 
gastrointestinal bleeding is present. Foods must be blended to the right consistency because 
excessive fluid can lead to vomiting and choking. The Petitioner must be fed through a gastrosto- 
my tube. He cannot be fed too fast or he will get air in his stomach, causing him to become rigid 
and unmanageable. 

7. The Petitioner must be given chest percussions several times a day in order to prevent the decline 
of his lung capacity and to prevent pneumonia. He also must be given range of motion exercises. 
These exercises are difficult to administer because his extremities are rigid and his right hip is 
dislocated and sometimes swollen. 

8. The Petitioner's attending physician, Charles Brett, M.D., has ordered that the Petitioner be put 
into a wheelchair twice each day. Placing the Petitioner in this upright position stimulates him to 
cough (thereby clearing his lungs), helps his circulation, and improves his stamina. However, the 
Petitioner has not been put into the wheelchair at all during the last six months, due to the lack of 
continuous nursing care. The Petitioner's mother alone, is unable to move the Petitioner to or 
from his bed to the wheelchair, even with the use of the Hoyer lift in her home. Therefore, she 
cannot leave him in the wheelchair during the nurse's absence since the mother cannot return him 
to the bed should he vomit or have a bowel movement. 

9. The Petitioner recently was a patient in Cone Hospital in Greensboro from around January 29 to 
February 15, 1993. The Petitioner was admitted for social reasons while his mother was admitted 
for pneumonia. While he was not placed in the intensive care ward, sitters were hired for him at 
government expense to provide constant care that the hospital nurses and other employees were 
unable to provide. 

10. There are a number of services that the Petitioner requires that only a skilled nurse can perform, 
including the administration of oxygen, analyzing the condition of his lungs, checking blood 
pressure, G tube feedings, giving chest percussions, and giving range of motion exercises. 



450 8:5 NORTH CAROLINA REGISTER June 1, 1993 



CONTESTED CASE DECISIONS 



1 1 . There are a number of services that the Petitioner requires that a person other than a licensed 
nurse could perform, such as oral suctioning, and moving the patient. 

12. Of the services performed by persons other than the Petitioner's mother, the services that must be 
performed by a skilled nurse constitute over half of the total services required. 

13. The visiting nurses who come to the Petitioner's house now for five one-hour visits a day, seven 
days a week, are unable to provide all the care needed by Petitioner and ordered by his physician 
Charles A. Brett, M.D. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 
following 

CONCLUSIONS OF LAW 

1. Rule 26B .0121 of Title 10 of the North Carolina Administrative Code does not conflict with 42 
C.F.R. 440.80 and, therefore, is valid as applied in this case. 

2. Rule 26B .0121 provides that to qualify for "private duty nursing", the services must be "medical- 
ly necessary", which means that "the person must require substantial and complex continuous 
nursing care by a licensed nurse." This requires only that at least half of the time that care is 
being provided by visiting nurses and aides, the care would require the expertise of a licensed 
nurse to properly perform. 

3. The Petitioner's medical needs meet the definition of "private duty nursing services" under 10 
NCAC 26B .0121 because over half the time that care is being provided, he requires more 
individual and continuous care than is available from a visiting nurse or routinely provided by the 
nursing staff of the hospital or skilled nursing facility. 

4. In addition, 10 NCAC 26B .0121(c)(3) offers as an example of the type of case that requires 
"private duty nursing" the situation of a patient who "is dependent on other device-based respira- 
tory support, including tracheostomy care, suctioning, and oxygen support." This means that a 
patient qualifies for "private duty nursing" whenever he is dependent on any of the three examples 
of being "dependent on other device-based respiratory support" (i.e., tracheostomy care, 
suctioning, and oxygen support). 

5. The Petitioner's medical needs comport with the example of "private duty nursing" in 10 NCAC 
26B .0121(c)(3), since he is dependent on suctioning, even though he does not require tracheosto- 
my care and may not be dependent on oxygen. 

RECOMMENDED DECISION 

The North Carolina Department of Human Resources will make the Final Decision in this 
contested case. It is recommended that Agency adopt the Findings of Fact and Conclusions of Law set 
forth above and enter judgment in favor of the Petitioner and provide private duty nursing care for 8 
continuous hours a day, 7 days a week, commencing immediately. 

ORDER 

IT IS HEREBY ordered that the agency serve a copy of the Final Decision on the Office of Adminis- 
trative Hearings, Post Office Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with the 
North Carolina General Statutes 150B-36(b). 



8:5 NORTH CAROLINA REGISTER June 1, 1993 451 



CONTESTED CASE DECISIONS 



NOTICE 

The agency making the final decision in this Contested Case is required to give each party an 
opportunity to file exceptions to this Recommended Decision and to present written arguments to those in 
the agency who will make the final decision. N.C. Gen. Stat. ^fl50B-36(a). 

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy of 
the Final Decision on all parties and to furnish a copy to the parties' attorneys of record and to the Office 
of Administrative Hearings. 

This the 13th day of May, 1993. 



♦ 



Brenda B. Becton 
Administrative Law Judge 



< 



♦ 



452 8:5 NORTH CAROLINA REGISTER June 1, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCA C) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


8 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


19 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Health, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


*21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


22 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometry 


42 


25 


State Personnel 


Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 


58 






"Reserved" 


59 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 



Speech & Language Pathologists & Audiologists 64 
Veterinary Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



8:5 



NORTH CAROLINA REGISTER 



June 1, 1993 



453 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 



I 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria. 5 

Low- Level Radioactive Waste Management Authority, 232 

ADMINISTRATIVE HEARTNGS 

Civil Rights Division. 370 
General, 366 
Rules Division, 367 

COMMERCE 

Alcoholic Beverage Control Commission. 408 
Banking Commission. 408 

ENVIRONMENT, HEALTH. AND NATURAL RESOURCES 

Coastal Management. 279 
Environmental Management. 210 
Health Services, 283. 335, 425 
Marine Fisheries, 28 
Soil and Water Conservation, 214 
Wildlife Resources Commission, 32 
Zoological Park, 337 

FLNAL DECISION LETTERS 

Voting Rights Act. 4. 407 

GOVERNOR/LT. GOVERNOR 

Executive Orders. 1, 93, 229, 332, 401 

HUMAN RESOURCES 

Facility Services, 94 

Medical Assistance, 25. 414 

Mental Health. Developmental Disabilities and Substance Abuse Services, 7. 413 

Social Services Commission. 237 



♦ 



4 



454 8:5 NORTH CAROLINA REGISTER June 1, 1993 



CUMULATIVE INDEX 



JUSTICE 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Private Protective Services Board, 252 

LABOR 

OSHA, 97, 231, 278 

LICENSING BOARDS 

Architecture, 43 

Geologists, Board of, 285 

Mortuary Science, Board of, 45, 342 

Nursing Home Administrators, 346 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners, 53 

Plumbing, Heating and Fire Sprinkler Contractors, 360 

Real Estate Commission, 53, 364 

Social Work, Certification Board for, 428 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290, 432 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427 

STATE PERSONNEL 

Office of State Personnel, 286 

STATE TREASURER 

Retirement Systems, 337 



8:5 NORTH CAROLINA REGISTER June 1, 1993 455 



NOW AVAILABLE 

NORTH CAROLINA 
ADMINISTRATIVE CODE 



♦ 




North Carolina Administrative Code (NCAC) is available on 314 inch diskettes and formatted in WordPerfect 5.1/5.2. 
subscriptions with monthly updates are: 



Yearly 







Yearly 








Yearly 


Title 


Agency 


Subscription 


Title 


Agency 




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1 - 26 


All Agencies 


450.00 


14A 


Crime Control & Public 


Safety 


45.00 


1 


Administration 


60.00 


15A 


Environment, Health, an 


d 




2 


Agriculture 


60.00 




Natural Resources 




300.00 


3 


State Auditor 


10.00 


16 


Education 




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4 


Commerce 


60.00 


17 


Revenue 




120.00 


5 


Correction 


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18 


Secretary of State 




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6 


Council of State 


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19A 


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7 


Cultural Resources 


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State Treasurer 




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in Volumes 34 and 39). 



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OFFICE OF ADMINISTRATIVE HEARINGS 

P. 0. DRAWER 27447, RALEIGH, NC 27611-7447 ♦ FAX 1-919-733-3462 



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FIRST CLASS MAIL 




i >- 






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585 
UNIV. OF NORTH CAROLINA 
Lfty LIBRARY CB* 3385 
VAN HECKE-UETTACH 064-A 
CHAPEL HILL 



NC 27599